An Antitrust Analysis Of Patent Pools

As the era of knowledge economic approaching, technical innovation is a critical consideration while measuring the vitality of an economic entity. Regarded as two mechanism of incenting innovation, intellectual property and antitrust law raise the attention of public. The balance between the protection of intellectual property right and maintaining market competition is a high eye-catching issue. After a long wide discussion, there are some international common views in the area of patent pool, which is, on the basis of recognizing the beneficial effect of technology transfer and technology application, using antitrust law to regulate patent pools.Although our country has a late beginning of legislation in patent pool, the practice of patent pool in our market is common enough to raise our attention. At first, patent pool is a device to invade our market used by developed countries, which always charged us extremely high license fee while importing patent technologies to our country. For example, referring to DVD technologies there are3C and6C patent pools, besides that they have MPEG-2patent pool which involving video compression technologies, and recently, there is3G patent pool in communication area. After the litigation between Dongqiang and3C in2004, more and more domestic companies tend to strike back to the unreasonable profit plunder of patent pool, and such cases also come to the fore in succession. Meanwhile, we also began the construction of our own patent pools, and more and more enterprises flooded into the operation and development of patent pools. Merely in the information industry, there are patent pools such as AVS, CBHD, IGRS and CTU. Besides that, in other fields, such as, construction and building materials, there are also some patent pools. Concerning to the broad practice of patent pool, it is in urgency to regulate patent pool. The first thing should be taken into account is to regulate patent pool by antitrust law. The Antitrust Law in2008only offered the antitrust policies while dealing with intellectual property, however, the State Council has already listed the administrative legislation on the agenda. Recently, in the Guideline of Antitrust Enforcement in the Area of Intellectual Property(4ed), there are not only regulation applied to general intellectual property issues, but also specify the measure steps while dealing with patent pools. From that we can deduct our country’s attitude and idea to patent pools.This paper was written under this background, which mainly standing on the point of whether a patent pool has an illegal antitrust feature, while using the traditional analytical framework of antitrust law and considering the characters of patent pools, analysis the problem step by step. The paper can be divided into five parts:the first part is introduction, which briefly introduce the definition and classification of patent pool, while specify the issue in this paper; the second part generally analyze the competitive effect of patent pool, including both pro-competitive effect and anti-competitive effect, which is considered in generality and not combining any substantial analytical element and monopolistic conduct; the third part involves the analytical elements while making the antitrust analysis, which specifically consider three perspectives:the relationship between the pooling patents, the provision in licensing agreements and the management activities of patent pool; the forth part is a substantial analysis of monopolistic conducts of patent pools, which firstly determine the antitrust principle to be applied and the relevant market, then analysis the conducts in accordance with the framework of monopolistic conduct in traditional antitrust law; the last part is conclusion, which include a conclusion of the method of determine the illegal antitrust feature of a patent pool and a brief suggestion in regulating patent pools.