The Study Of The Non-practicing Entities's Act And Legal Regulation

Studying the Non-Practicing Entities' s act,we should exclude simple research activities and graspe two main points,business objectives of obtaining economic interests and being not engaged in the commercialization ofthe paten or the transition of the patent. NPE is a specific type of patent owner and act and phenomena, also a kind of reasonable business model.A large amount of questionable patents which created by American loose patent policy provide NPE weapons, and higher NPE's bargaining power can be got by the U.S. litigation systemtending to the patentee,which making the profit models of litigation possible.In terms of technology innovation, NPE helps promote the open innovation of the enterprise and attaches great importance to patent strategy, realizing the value of patent, but in the case of lack of necessary guidance and regulation, NPE will destroy the innovation environment eventually.However,massive patent concentration can exert more competitive advantages of technology value and commercial value of patent than a single or a small number of patents concentration,the combination of patent integrating strategy and technology barrier intimidation tactics can also lead to an unfair competition.Small businessesand research institutions and the intermediary and independent research activities are NPE's sources of the patent,and licensing patent to large enterprises and filing patent infringement lawsuist and providing services are the profit way of NPE.The act patterns of NPE can be summarized as “capital plus mental” patent concentrated act, and “patent plus operation ” patent profit act.In view of using the patent to safeguard rights and the use of patent threaten with legal proceedings are difficult to distinguish from, NPE's patent profit act can be divided into two categories:the troll actand the un-troll act.Patent concentrated act is a means where NPE achievs dominant position, obtaining economic interests is NPE's purpose of patent trolls act. The advantage of monopolizing formed by patent concentrated act throughpatent abusing inhibits competition in the technology market,however,it does not belong to monopolistic conduct or unfair competition,owing to the invading of legal interest having not reached the degree of monopoly or of restrict competition. Patent troll act is one type of abusing rights, and patent threaten with legal proceedings has invalidity and infringing.As the birthplace of NPE,US has been adjusted policy to drive NPE's return of the realizing patent value since 2011.From M&A transactions of patent and strict antitrust scrutiny about standard patent operation,we can find that European has been cautious about patent operations.It is more practical for South Koreato prevent NPEhiting domestic industries and achieve industrial upgrading and restructuring with NPE model.With gradual mature of Chinese patent exchange market, and the need of continuous expansion on stronger intellectualproperty protection and promoting transformation of science and technology achievements,China has formed the soil where NPE can abuse intellectual property on patent supply and the rights assertion,meanwhile the differences between Chinese and American patent system are narrowing.Our country is faced with the intrusion of NPE layout and litigation, it is necessary to be legal regulation of NPE's act timely.To begin with, we should clear the antitrust review principles of patent pool and perfect determining elements of dominant market position,when applying the Antitrust Law to the regulation of NPE's patent concentrated act,Next, for regulating NPE's fraudulent act,we would forbid malicious patent infringement allegations and also add punitive measures about malicious collusion of intellectual property in the Anti-Unfair Competition Law.Thirdly, procedural law can help reduce NPE's patent threaten with legal proceedings,so we need to perfect order injunctions of patent infringement,at the same time to establish review before litigation.In a word,not only the regulation of NPE's act will help NPE become a tool which promoting innovation,but also be will conducive to improve competitiveness of Chinese intellectual property in the international market.