Study On Patent Pools Under Anti-monopoly Law

In the era of knowledge economy, innovation has become the most important force for economic development. As the two policy instruments to promote innovation, anti-monopoly law and intellectual property rights are particularly significant. The interaction of anti-monopoly law and the exercise of intellectual property is not only important to economic vitality, but also leads to many important legal issues. In the relationship between patent rights and anti-monopoly law, a unique challenge is arising:patent pools are increasingly used by many companies and have potential anti-competitive effects, how does anti-monopoly law to regulate such joint conduct. Patent pools are agreements of two or more patentees through an entity to license their portfolio patents to each other or to third parties together. According to different standards, patent pools can be divided into different types, different types of patent pools have different competitive effects. In 150 years, anti-monopoly law has been an important factor in the development of patent pools. Economic analysis on patent pools can help to understand the theoretical basis for the legitimacy of patent pools. Study on these basic issues deeply will help to understand the relations between patent pools and anti-monopoly law.Patent pools are associated with the double effects of promoting and harming competition, the two effects mingled intricately that made it has been the focus of public policy in each country. On one hand, by reducing transaction costs, promoting the use and dissemination of technology, encouraging innovation through scattering research and development risks, improving the competitiveness among enterprises, promoting the formation of scale economies, patent pools bring us significant efficiencies of promoting competition. On the other hand, patent pools also have anti-competitive effects, such as assistance or fixing prices, impeding innovation, excluding competing technologies, or creating market entry barriers. The principle of banning abuse of civil rights, the principles of the balance of interests on patent law and the principle of efficiency on economic law have provide us legal base for regulating anti-competitive effects of patent pools. Judging from the way of regulation, patent pools not only have been regulated within internal limits of patent law, but also from external restrictions of civil law and anti-monopoly law. The natures and characteristics of anti-monopoly law determines that it is the most important regulatory tools for patent pools. Judging from the mode of regulation, there are single mode and mixed mode. Although the ways and modes may be different, but the same purpose of regulation is to promote their positive effects and inhibit their negative effects.The regulated history of patent pools with antimonopoly law in the U.S., EU, Japan and Taiwan show us the evoluted paths of legal regulation. In the U.S., the anti-monopoly regulation on patent pools has undergone an evolution from basic exemption to the rule of per se illegal to the rule of reason. In the EU, patent pools had been excluded from collective exemption for a long time, but with the termination of individual exemption as well as the issuance of 2004 Guidelines, conditional block exemption has step on historical stage of EU. In Japan, the attitudes to patent pools from strictly control to actively support, reflects the evolution of anti-monopoly policy from a technologically backward country to a technologically advanced country. Anti-monopoly regulations on patent pools in Taiwan reveals some practical problems to us. All this have provided us some important references and inspiration for how to regulate patent pools effectively.In recent years, patent pools have become a hot-discussed topic. In the past, people were concerned about the anti-competitive effects of patent pools, such as high prices and discriminatory treatment exerted by DVD patent pools, MPEG-2 patent pool, ATSC patent pool. But recently, people pay more attention to patent pool's competitive effects, and more and more domestic enterprises are busying in setting up patent pools. In information technology and other fields, some patent pools have been established. AVS patent pool is a successful examples due to balancing the interests between licensors, licensees and the public. Although patent pools are helpful to resist international patent pools'exorbitant fees, we cannot ignore the legal issues in their formation and operation. At present, China has initially established legal regulation system based on anti-monopoly law, but each law has its defects, so it is necessary to coordinate between these laws.With the implementation of anti-monopoly law, it is important and urgent to analyse patent pools with anti-monopoly law. In the knowledge economy era, the full protection of intellectual property and effective banning abuse of intellectual property are equally important.The main challenge is how to distinguish between legal acts and unlawful conduct of patent pools. Only when intellectual property rights holders exercise their rights beyond the scope of patent law, anti-monopoly law should restrict their behavior, which requires anti-monopoly law to be careful to avoid restricting legitimate exercise of intellectual property. For anti-monopoly law, the patent pool itself is not illegal, patent pool should not be presumed to have market powers, and an important criterion to measure its justifiability is to see whether it is beneficial to the spread and use of technology. In specific analysis for patent pools, it is very important to define the relevant market, which is the starting point for anti-monopoly analysis. The nature of the patents, licensing provisions and the management activities may result in particular competitive concerns, which determine that they are the essential elements of anti-monopoly analysis. For China, analysing the main anti-competitive conduct of patent pools is particular significant, which can provide important referencing value for our anti-monopoly enforcement.