Regulating Patent Pool By Antitrust Law

The essence of a patent pool is two or more patent owners agree to waive exclusive rights under their respective patents so as to grant each other rights and/or jointly grant rights to others under their respective patents. It is the product of the development of science and technology, and the needs of overcoming the patent thicket and promoting the industry standardization. Patent pools have many pro-competitive benefits, for example, clearing the blocking patents, facilitating the rapid development of technology, reducing litigation costs and the business cost, distributing the risks among the members, etc. Patent pools also have potential anticompetitive effects, such as having the inclination of dominant even monopoly, facilitating cartel, may cover invalid patents and hindering innovation, etc. When a patent pool has the anticompetitive effects, it will be regulated by Anti-trust law.The inside cooperative agreements of a patent pool may become"Horizontal agreements"and regulated by antitrust law. If the members of a patent pool through agreements or other methods to fixing prices, restraining amounts, dividing sales territories or allocating customers, or having other restraining terms,or refusing license outside, all of these thing may have anti-competitive effects.The outside licensing agreement of a patent pool may bring two anti-trust problem: One of them is the problem of"Vertical Agreements", the vertical agreement has no anti-trust problem usually, but it may infringe the antitrust law if it restraining the prices of resale. The other problem is the misuse of the market dominant power, if a patent pool has market dominant power, and has the action of excessive price, price discrimination, deal restriction, license refusal or tying sales, they may have anti-competitive effects also.When appraising the market infection of a patent pool, the antitrust department must use"the rule of reason"as a major analyze tool, considering all the factors, comparing the effects of the both sides, and reaching a conclusion at last.