On Anti-trust Regulation Of Patent Pool

Patent pool has been developing more than 150 years overseas; however,domestic scholars had not virtually cognized and then concerned it until the year 2002when"DVD patent licensing fee incident"happened. In the aforesaid event,multinational enterprises made use of patent pool to implement"compulsorypackage licensing",and charged unreasonable patent licensing fees while holding thebanner of exercising intellectual property rights. As a result, domestic DVDmanufacturing enterprises were severely attacked and pushed aside off the establishedinternational market. Thereafter, experts and scholars have been engaged in seekingearnestly a solution so as to cope with and regulate the illegal behaviors ofmultinational enterprises with patent pool strategy. Fortunately, the Antitrust Law ofthe People's Republic of China enacted in 2007 has laid an important legal foundationfor the study of regulating patent pool. Nevertheless, patent right itself is fairly specialand complex; let alone patent pool that develops on the basis of patent right. Therefore,it is far from enough to solely have antitrust law regulate patent pool. Herewith, theauthor analyses the existing national anti-trust law and puts forward some legislativesuggestions from the reference of legislations and judicial practice abroad combinedwith the actual situations home. At the same time, the author inducts systematicallythe content of anti-trust review, and raises several suggestions regarding the relatedprinciple, standard and method in hope of making humble efforts in theoretical studyand practice.The thesis consists of four chapters besides the conclusion. The first chapter generalizes the basic theories and development history ofpatent pool. Herewith, the first section introduces the concept and category of patentpool. The second section analyzes the theoretical basis, i.e."the copper-zinc duopoly",and concludes that patent pool fits perfectly well with the aforesaid theory. The thirdsection mainly deals with the cause as well as the development history of patent poolthrough the review of American patent pool history.The second chapter analyzes the social effects of patent pool, positively andnegatively. The author argues that the competitive advantage brought by patent poolshould be fully used and that anticompetitive effect be strictly regulated.The third chapter initially discusses the relation between patent pool and antitrustlaw; then it analyze the legislations regulating patent pool home and abroad.Herewith, the first section finds that antitrust law and patent system have the essentialobjective in common, and thus it makes sense to have antitrust law regulate patentpool and patent system. The second section mainly discusses the general situation ofanti-trust legislations home and abroad. The following section explores thedeficiencies and possible further improvement of the national anti-trust legislationscompared with those in other countries and regions.The fourth chapter concludes the factors that should be considered during theanti-trust review by our anti-monopoly institutions from references to Americanjudicial practices. The first section is about the internal review of patent pool whichincludes the review of patent pool itself and that of the agreement among the membersof the patent pool. The second section is about the review of external relations whichfocuses on the licensing practice to a non-member of the patent pool. The authorschemes out different review principles, review methods as well as appraisal standardsrespectively from references to American review practices.The fifth chapter mainly analyzes the liabilities of illegal monopolization inpatent pool, including civil liability and administrative liability. Because there is notrelevant stipulation on criminal liability in our country, considering our country'sreality, the author puts forward the point that we should not set criminal liability in ourcountry.