Comparative Study On The Regulation Of Patent Pool Misuse

With the entry into the knowledge economy era, intellectual property right especially patent right has become a very important strategic weapon in the competition. The strengthened protection of IPR world widely is aimed to encourage and promote the technology innovation. However, under the strengthened protection, patent system is being used by many foreign giant companies as a tool to block rivals. Just as said by Prof. Zheng Chengsi, patent system has lost its way.In recent years, foreign DVD giants misuse the patent pool to jointly block Chinese domestic DVD manufacturers, causing grave damage to domestic DVD industry. It is said that, at present, many western giants are planning to set up patent pools in the fields of color TV, digital camera, MP4 and biotechnology etc. Nowadays, patent pool licensing has become a very popular mode of patent licensing. Patent pool, on the one hand, may eliminate the blocking patent, reduce transaction cost and promote the commercialization of technology, and on the other hand, if misused, may harm fair transactions and restrict the competition. Unfortunately, China's existing laws are unable to provide an effective regulation of such patent pool misuses, which costs a lot for domestic companies to safeguard their rights and interests. Therefore, it is essentially necessary to explore deeply into the mode of patent pool licensing, analyzing the patent pool misuses, and finally establish an effective mechanism to regulate patent pool misuses.In China, whereas the existing research in this area is mainly focusing on misuse of intellectual property right, patent misuse and limitation of intellectual property right etc, there is rare research digging deeply on the specific issue of patent pool licensing. This article has some breakthroughs in the following aspects: (1)focusing on patent pool misuse, one of the most popular licensing mode at present to dig deeply and overall on this issue; (2) referring to many first-hand materials regarding U.S., EU and international practices in regulating patent pool misuse, updating the outdated materials as employed in the existing research documentaries; (3)based on Chinese multiple legislation aims, this article forewords three methods to regulate patent pool misuse, that is, contract law, patent law and antitrust law; (4)this article makes a preliminary research on the implementing system.Chapter 1 introduces the concept of patent pool and its features by employing the example of MPEG LA, analyzes the advantages and disadvantages of patent pool and lists some typical patent pool misuse acts, among which the article will mainly focus on the misuses in patent pooling which is distinctive with other form of patent license. Chapter 2 analyzes the theoretical bases for regulating patent pool misuses from the aspects of abus du droit and antitrust goals. Chapter 3 introduces the practices of U.S., EU, developing countries and international regulations on patent pool misuses. Chapter 4 firstly reviews China's relevant legislations applicable to patent pool misuse and points out the defects, and then based on the above theoretical analyzes, foreign practices and China's current national situation, proposes the systematical regulation of patent pool misuse from contract law, patent law and antitrust law.