Patent Pool Licensing Patent Misuse Antitrust Regulation

There, currently , has an increasing and comprehensive concern on the issue of patent pool abuse origined by the typicle case of " PHILIPS DVD/3C" in the circle of government , industry ,and acadamic . The topics , such as how to establish and perfect the early warning mechanism of patent, how to aggressivvely response the rigorous challenge in the field of intellectual property and so on , have notably invited comparatively thorough discusses . Among these, the regulation of patent right abuse in the range of patent pool by the antitrust (competition) law has seemed extremely urgent ,so the article tries its devotes to this hot topic .The preface of the article summarized the causing factors , the background of the issue noted above ,the significance and approach of study , which aims of the reveal that there exists great realistic meanings and importance to probe the issue of patent pool and the regulation of patent right abuse in the range of patent pool by the antitrust (competition) law .Started with the analysis of the typicle case of " PHILIPS DVD/3C", the first part of this article reveals the circumstance , the main fundamentals and significance of the case , and points out that the emergence of the case appeals for insightfull system construction in connection with the regulation of patent pool abuse , and the anti-competition activities by means of patent pool should be regulated by the antitrust (competition) law ,though the protection of intellectual property rights is accordingly strengthened in a like manner .On the strength of the fairly detailed doing up of the emergence and evolution of the patent pool ,the second part of this article considers that the practice of patent pool in our country ,compared to the one-hundred-year development course and its long-range practice in overseas countries , was a dilemma just at its beginning that, for one hand , it would have to face with the certain amounts of creditors' patent pools which had set up for a long time ago and restrictive competition activities by means of their patent pools ; and on the other hand , it would meet with in a significant measure the challenge of anti-competition upon a large sarcle of probabilities during the course of the establishment of its patent pool . The dilemma it encountered has exerted an immediate influence on both the value orientation and specific system construction of antitrust legislation in the field of intellectual property in our country.In the third part, this article anatomies the connotation and struture of the term of patent right abuse based on the definition of right abuse ,and then points out that, covered with patent pool, a large number of activities of patent right abuse ,manifest in certain specific circumstances such as the conditional sale of non-essential patents, the collection of unreasonable licence fee , the allianced price setting , the return-confered provisions which restricts competition , and so on.With the help of the analysis above , the close connection between the patent pool abuse and the antitrust (competition) law is emphasized in the forth part of this article , and the necessity of regulation of patent pool abuse by the antitrust (competition) law , together with the main details of examination , is equally stessed . And followed up , the introduction of the fairly well-rounded experiences from overseas countries with regard to the regulation of patent pool abuse by the antitrust (competition) law accordingly aims of providing the useful reference for the related legislation and practice in the future in our country.In comparision with the fairly successful practice of regulation of overseas countries , the defections of our antitrust (competition) law seems not to be limited to the text copy , though it actually plays an important and irreplaceable role on the regulation of administrative monopolization . Especially in the field of intellectual property , the remarkable lackness of concern has weighed in a large part its strengthfull protection of intellectual property, to such an extent as to that there is nearly no provision can be applied to the related patent rights abuse in the range of patent pool permision . In view of its actual defects noted above , the fifth part of this article puts emphasis on the history mission which our antitrust (competition) law will have to fulfill in facing with the transworld rigorous challenge in the field of intellectual property , and then puts forward the auther's preliminary conceptualization to pefect our antitrust (competition) law in order that rational and effective regulation of the factor of restrictive on competition of patent pool .is achieved .