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ANALYSIS ON ANTITRUST REGULATION OF PATENT POOLS. Author: Ping Zhang Peking University Law School Speaker: Qishan Zhao The Intellectual Property School of Shanghai University. PATENT POOL: CONCEPT AND CATEGORIES. V. CONCLUDING REMARKS. ABSTRACT.
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ANALYSIS ON ANTITRUST REGULATION OF PATENT POOLS Author:Ping Zhang Peking University Law School Speaker: Qishan Zhao The Intellectual Property School of Shanghai University
PATENT POOL: CONCEPT AND CATEGORIES V. CONCLUDING REMARKS ABSTRACT II. PRO-COMPETITIVE EFFECTS OF PATENT POOL III. ANTI-COMPETITIVE RISK OF PATENT POOL IV. PATENT POOL AND ANTITRUST REVIEW
1.PATENT POOL: CONCEPT AND CATEGORIES Contract -based Patent Pool Mega Pool Patent pool Patent Pool Backing Technical Standard
1.1 Mega Pool • Resolve all pending infringement claims • Bind the members to give each other nonexclusive licenses • Features: • It has sophisticated administrative structure • The royalty is paid according to the licensing terms agreed by the pool committee • Patents value is evaluated by an independent committee • New patents can be added to the patent pool.
1.2 Contract-based Patent Pool • Features: • It offers one-stop licenses • It often targets specific industrial sectors or specific technology • There is no sophisticated administrative structure
2. PRO-COMPETITIVE EFFECTS OF PATENT POOL • Possible Solution to Patent Thicket • Essentiality: Precondition for the Pro-competitive Effect of Patent Pool
3. ANTI-COMPETITIVE RISK OF PATENT POOL • Tying-In Non-Essential Patents • The definition of essentiality • The patent-expert mechanism • Price Fixing and Unreasonable Royalty Charge • Current royalty computation method may not reflect market change • Total royalties collected by the multiple patent pools will be a heave burden for the manufacturers • Royalties are not charged by per usage of the patented technology • Grant-back
4. PATENT POOL AND ANTITRUST REVIEW • The steps to determine whether a given patent pooling arrangement violate antitrust laws: • Determine whether the agreement or the collaborative process lessens or puts at risk any competition that would otherwise occur. • Determine whether the pooling agreement and the collaborative process create recognizable, verifiable, and measurable pro-competitive efficiencies. • Determine whether the licensing agreement and its associated process is necessary to achieve the pro-competitive benefits. • Determine whether the gains from pro-competitive benefits outweigh any foreseeable damage arising from the anticompetitive effects.
5. CONCLUDING REMARKS • Patent pool carries potential to hamper competition and has been subject to antitrust review from its very birth. • The anti-competitive effect of patent pool can not be removed by private action. • The state power should intervene to correct possible anti-competitive effect of patent pool.
