The Research On Anti-trust Regulation On Patent Pool

In China, patent pool has not been paid attention to until the commencement of DVD patent case several years ago. As to the DVD case, foreign enterprises established a patent pool in connection with the DVD standard and promulgated a communiquéthat high patent license fee will be charged for use of pooled patent. During this commercial war, China's export industry of DVD had almost been destroyed. In this context, China begins to be aware of the important role of patent pool playing in the intellectual property strategy. The"Antimonopoly Law of the People's Republic of China"has been promulgated in 2007 and it has included some principle regulations regarding the intellectual property monopoly. However, no laws or regulations has ever provided for patent pool or monopoly of patent pool and similar provisions for monopoly of patent licensing can only be found in numerous laws and regulations. In consideration of the threat by foreign patent pool monopoly conducts to the development of our national industries, the writer, studying and using foreign theories and practices as reference, writes this paper to discuss the regulation on monopoly of patent pool and tries to put forward some practical suggestions for China's relevant legislation.Chapter I: Basic Knowledge of Patent PoolThis chapter introduces and discusses the concept, characteristic, production and effect of patent pool in order to comprise the essential knowledge bases for the conceding explanation. In the meantime, this chapter especially differentiates the concepts between patent pool and cross-licensing, patent pool and standard. Chapter II: Essentiality of Anti-trust Regulation on Patent PoolThis chapter analyzes the possibility of anti-competitive effect of patent aggregation and patent dissemination. Please note that this part not only provides basis for reasoning of the necessity of anti-trust regulation on patent pool but also makes preparation for the following study of the anti-trust review of patent pool. In the end of this chapter, the conclusion of the necessity of regulation is drawn based on aforesaid analysis and the study of the relationship between anti-trust law and patent. Chapter III: Anti-trust Review of Patent PoolThis chapter studies the anti-trust review for specific anti-competition conducts during two phases, including the patent aggregation and dissemination processes. Potential anti-competition factors lie in the phase of patent aggregation and therefore review of patent aggregation focuses on the control of anti-trust factors. In this part, essentiality rules for review of pooled patents and opening and independence requirements for the organization of patent pool have been studied. As for the review of the phase of patent dissemination, relevant conducts that may violate the anti-trust law, including restricted agreements and abusing of dominant position, have been reviewed from a view of reasonable principle.Chapter IV: Introduction of Foreign Legislation for Regulation on Patent Pool In this chapter, legislations in U.S.A., European Unions and Japan have been studied and on this basis, the writer puts forward suggestions for China's such legislation.