The Legal Regulation On Patent Pool Misuse

In the time of knowledge-based economical globalization, patents become powerful weapons for enterprises to engage in market competition. Some multinational corporations have actively set up patent pools which are based on patent-assembly, and have abused the refusal to license, tying agreement, grant-back clauses and other means according to dominant position on relevant technical areas in order to control the relevant market and then to seek profit–maximization. Meanwhile, since the development of our own intellectual property lagging behind the developed countries and lacking sufficient patent chips, patent pool holders constantly misuse their rights in our country. For not fully understanding the underlying principle of patent pools misuse, not really knowing how to regulate the misuse by laws, and also lacking experiences in misuse prevention, administrative enforcement and judicial practice, it would be difficult for our enterprises to protect their legitimate rights and interests when facing the right misuse by patent pool holders. This thesis tried to discuss the above problems in order to do some helps through law enforcement to regulate the rights misuse by patent pools. This thesis is divided into three parts: introduction, body and conclusions, and the body is composed of four chapters.Chapter I discusses the conception of patent pools and right misuse firstly, and then classifies the right misuse by patent pool holders into five types: refusal to license, unreasonable licensing fees, tying agreement, patent infringement warning letter abusement and grant-back clauses. Chapter I addresses my own opinions on the above five types of right misuse lastly.Chapter II analyzes right misuse by explaining the case of "3G" (TD-SCDMA) Patent pool in China and shows that it is of urgency and necessity to regulate right misuse of patent pools. And then Chapter II analyzes the reasons why "3G" (TD-SCDMA) Patent pool misuse their rights in China. In my opinion, there are two reasons: firstly, our enterprises know little about patent and lack of patent chips; secondly, the relevant laws and policies of China provide merely weak protection in relevant fields.Chapter III firstly discusses whether the regulation of patent pool misuse is legitimacy in the view of legal theory and the TRIPs Agreement. Secondly, Chapter III discusses how to regulate patent pool misuse according to the existing Civil and Economic Law. Finally, as our laws platform is quite perfect, I think the disadvantages in regulation of right misuse lie in practical operation, which includes the absence of preventive mechanisms, the weakness of relevant measures enforcement and the vague in jurisdiction.Chapter IV puts forward suggestions in order to remedy the disadvantages in law regulation regarding to the patent pool misuse. I think we can take measures in four aspects: first, to establish warning mechanism so as to prevent patent pool misuse; second, to adjust the mechanisms of anti-monopoly law enforcement agencies; third, to strengthen the enforcement of the compulsory license; fourth, to clear the jurisdiction in judicial relief.