||A Study of Patent Pool Licensing Arrangements: From the Perspective of Comparison of the Competition Law in United States, European Union, Japan and Taiwan
||Institute of Law in Science and Technology
Taiwan Fair Trade Law
Japan Antimonopoly Act
EC Competition Law
patent pool licensing arrangements
patent pooling arrangements
US Antitrust Law
For the last two decades, two notable phenomena have been witnessed in the world economy. One is the drastic increase in global competition; the other is the rapid development of high technology industries. Taiwan has played an important part in advancing the high-tech revolution. Traditionally, Taiwan’s economic growth depends upon labor-intensive manufacturing industries, but nowadays it greatly relies on high-tech industries. To meet the global competition, high-tech technology has to undertake innovation in each aspect: management, product, manufacture process, marketing and services, etc. High-tech industries are gradually replacing the traditional industries as a dominant force in national economies, and grow and change at a speed never seen before in recent years. As technology continues to advance at a rapid pace, so do more and more patents that cover aspect of making, using and selling this innovation. Therefore, such vast number of patents being issued will create a very real danger that a single product or service will infringe on many patents and make it harder for the companies’ actually building businesses and manufacturing products to invent around these patents. As a result, it usually costs manufacturer or provider a lot of valuable time to discuss with such a great of deal of patentees to have appropriate license in place to cover such blocking, competing or complementary patents, and it usually has the manufacturer or provider risked uncertain situation in patent infringement or injunction ruled by competent courts. It usually delays the manufacturer to bring her products to market in time.
Hence, patent pools or a patent pools licensing arrangements provide good mechanism and platform to bridge manufacturers and patentees to have a win-win solution to facilitate the innovation, and indeed patent pools licensing arrangements undoubtedly would give rise to many economic benefits to facilitate such rapid development of high technology industries, such as the introduction of new products and industry standards.
By definition from legal perspective, a patent pool licensing arrangement or patent pooling arrangement is an agreement or contractual arrangement between two or more patentees to license their patent rights to one another and third parties out of this pool licensing arrangement, and a patent pool can refer to the aggregation of all the patents under such patent pool licensing arrangements which may comprise a few patents or hundreds of patents wherein the patents may overlap with each other or complemented to each others. However, it is usually confused with the use of “patent pool”, “patent pool licensing arrangements” and “patent pooling arrangements” from the relevant literatures as mentioned and addressed therein. In this study, I recommend to use the “patent pool licensing arrangement” or “patent pooling arrangements” to describe the below activities that two or more patentees license their patent rights to one another and third parties out of this pool licensing arrangement or the patents are consolidated into a single entity by means of transfer of the patent ownership from the pooled members to such single entity, such as a joint venture company, partnership or limited liability corporation who then sells to third party this licenses to the portfolio of pooled patents. With respect to “patent pool”, I recommend to use this term to describe a patent cluster or patent aggregation which may comprise a few patents or hundreds of patents under the above-mentioned patent pool licensing arrangements or patent pooling arrangements.
Generally, the pooling arrangements between the companies with the vertical relationship will facilitate the manufacturer to bring her products to market in time. Although the pooling arrangements between the companies with the horizontal relationship may bring some extent of anti-competitive effects, is it necessary to have more conservative attitude on such pooling arrangements to face more and more economic challenges in the world? At least from an overview on the competition policy in United States, European Community and Japan, the applicable competition authority have already put a more open attitude on such pooling arrangements. Therefore, it would be needed to consider how to have a flexible policy to face more and more patent pooling arrangements with pooled members having “competitive relationship” against each other in Taiwan. At least, in terms of such concerted action in Taiwan, likely cover such patent pooling arrangements, we need to have more open attitude to determine the validity of such pooling arrangement created by the competing enterprises under the Taiwan Fair Trade Law. In short, if the pooled members have the “horizontal relationship” or “horizontally competitive relationship”, I recommend to reconsider the necessity to ask the pooled members to file application for the approval from government authority to ensure such pooling arrangement applied to the exceptions as provided in section 14 of Taiwan Fair Trade Law to avoid any time-wasting and non-nowadays competition policy to block the pooling arrangement’s brining more and more public interest.
In short, if the creation of a patent pool is easily approved out of Taiwan area to facilitate Taiwan companies to have a cost-effective license through such platform, but similar patent pool licensing arrangement is not easily approved under Taiwan competition policy and legal system due to such unclear concept, I believe less and less high-technology companies will form the patent pool subject to government authority in Taiwan. At that moment, such Taiwan companies may not want to well utilize the patent system in Taiwan to manufacture, sell and use patented products due to such inconvenience and inappropriate legal and patent protection system. Obviously, this system of advance review for approval will be not in line with the rapid change in the high-tech industries. It goes without saying that this system will affect the advancement of the high-tech industries.
Therefore, this thesis recommends supplements and addendums to the existing Taiwan Licensing Guidelines from the perspective of the pooling arrangements mainly for the provision of express and clear sections to govern the patent pool licensing arrangements as what the competition policy in United States, European Community and Japan have already offered and provided so as to facilitate more and more companies or undertakings to have alliance and collaboration on the development of new technology and intellectual property such as patents, know-how and whatever so that all the participants may timely access to the information and start at the same line on the development without wasting too much time and risking financial investment. Most important, as mentioned above, to face the rapid change of the economic situation, not only the companies with vertical relationship should jointly work together but also the undertakings with horizontal relationship should cooperate with each other under the appropriate and timely competition law and execution regulations.
Hence, I sincerely hope that what this thesis recommends would help to bring more open views on the pooling arrangement and facilitate the technology development and public interest.
CHAPTER 1 INTRODUCTION 1
1.1 PURPOSES OF THE RESEARCH 1
1.2 SCOPE AND METHODS 3
1.3 FRAMEWORK 4
CHAPTER 2 BASIC CONCEPT OF PATENT POOL LICENSING ARRANGEMENTS 8
2.1 DEFINITION OF PATENT POOL LICENSING ARRANGEMENTS 8
2.2 DIFFERENT CATEGORIES OF PATENT POOL LICENSING ARRANGEMENTS 15
2.2.1 Classification upon Inter-relations of Pooled Patents 15
2.2.2 Classification upon Scale of Patent Pool Licensing Arrangements 21
2.3 DEVELOPMENT OF PATENT POOL LICENSING ARRANGEMENTS 25
2.4 RECENT PATENT POOL LICENSING ARRANGEMENTS 33
2.4.1 MPEG-2 Patent Pool Licensing Arrangements 34
2.4.2 Summit/VISX Patent Pool Licensing Arrangements 37
2.4.3 Patent Pool Licensing Arrangements in Biotechnology Industry 38
2.5 SUMMARY 39
CHAPTER 3 PRO- AND ANTI-COMPETITIVE EFFECTS ON PATENT POOL LICENSING ARRANGEMENTS 41
3.1 PRO-COMPETITIVE EFFECTS OF PATENT POOL LICENSING ARRANGEMENTS 41
3.1.1 Rapid Development of Technology 44
3.1.2 Reduction of Transaction Fees 45
3.1.3 Clearance of Blocking Patents 46
3.1.4 Reduction of Litigation Costs 46
3.2 ANTI-COMPETITIVE EFFECTS OF PATENT POOL LICENSING ARRANGEMENTS 47
3.2.1 Distortion of Competition 49
3.2.2 Effect on Innovation 54
3.2.3 Protection of Invalid Patents 55
3.3 ECONOMIC EFFECTS OF PATENT POOL LICENSING ARRANGEMENTS 56
3.3.1 Positive Effects 56
3.3.2 Negative Effects 57
3.4 SUMMARY 58
CHAPTER 4 U.S. ANTITRUST POLICY TOWARDS PATENT POOL LICENSING ARRANGEMENTS 60
4.1 PATENT POOL LICENSING ARRANGEMENTS UNDER UNITED STATES ANTITRUST LAW 60
4.1.1 Sherman Act §1 62
4.1.2 Sherman Act §2 65
4.1.3 The Clayton Act §2 67
4.1.4 The Federal Trade Commission Act §5 68
4.1.5 Supreme Court Patent Pool Licensing Arrangements Cases 68
4.2 JUSTICE DEPARTMENT’S BUSINESS REVIEW LETTERS TOWARDS RECENT PATENT POOL LICENSING ARRANGEMENTS CASES 83
4.2.1 MPEG-2 Patent Pool Licensing Arrangement Case 83
4.2.2 Summit/VISX Patent Pool Licensing Arrangement Case 84
4.2.3 DVD Patent Pool Licensing Arrangement Case 87
4.2.4 The UHF RFID Patent Pool Licensing Arrangement Case 89
4.2.5 Summary 92
4.3 PATENT POOL LICENSING ARRANGEMENTS UNDER 1995 INTELLECTUAL PROPERTY GUIDELINES 95
4.3.1 General Principals 95
4.3.2 Types of Markets 98
4.3.3 Safe Harbors 99
4.3.4 Principles as a Framework for Competition Analysis of Patent Pool Licensing Arrangements 101
4.4 OVERVIEW OF CD-R PATENT POOL LICENSING ARRANGEMENTS 103
4.5 SUMMARY 106
CHAPTER 5 EU COMPETITION POLICY TOWARDS PATENT POOL LICENSING ARRANGEMENTS 110
5.1 PATENT POOL LICENSING ARRANGEMENTS UNDER EC COMPETITION LAW 110
5.1.1 Article 81 and TT Guidelines: The Foundation of European Competition Doctrine 114
5.1.2 Technology Transfer Regulation No. 722/2004 towards Patent Pool Licensing Arrangements under TT Guidelines 119
5.1.3 Article 82: The Foundation of European Competition Doctrine 125
5.2 DEVELOPMENT HISTORY OF PATENT POOL LICENSING ARRANGEMENTS UNDER EC COMPETITION LAW 132
5.2.1 Recent Development of Patent Pool Licensing Arrangements 135
5.2.2 Third Generation Mobile Equipment Case 137
5.3 OVERVIEW OF CD-R PATENT POOL LICENSING ARRANGEMENTS 139
5.4 SUMMARY 143
CHAPTER 6 JAPAN ANTIMONOPOLY POLICY TOWARDS PATENT POOLS LICENSING ARRANGEMENTS 148
6.1 PATENT POOL LICENSING ARRANGEMENTS UNDER JAPAN ANTIMONOPOLY ACT 148
6.2 JAPAN FAIR TRADE COMMISSION LICENSING REGULATION 153
6.2.1 Overview of 1968 and 1989 JFTC Guidelines towards Patent Pool Licensing Arrangements 153
6.2.2 Overview of 1999 JFTC Guidelines towards Patent Pool Licensing Arrangements 156
6.2.3 Overview of 2007 JFTC Guidelines towards Patent Pool Licensing Arrangements 162
6.2.4 Overview of 2005 JFTC Guidelines towards Patent Pool Licensing Arrangements 171
6.3 SUMMARY 175
CHAPTER 7 TAIWAN COMPETITION POLICY TOWARDS PATENT POOL LICENSING ARRANGEMENTS 179
7.1 PATENT POOL LICENSING ARRANGEMENTS UNDER TAIWAN FAIR TRADE LAW 179
7.2 PATENT POOL LICENSING ARRANGEMENTS UNDER TAIWAN FAIR TRADE COMMISSION GUIDELINES ON TECHNOLOGY LICENSING ARRANGEMENTS 183
7.2.1 General Principles 184
7.2.2 Principles under Violation of Article 14 of Taiwan Fair Trade Law 186
7.2.3 Principles under Violation of Article 10 of Taiwan Fair Trade Law 188
7.2.4 Principles under Violation of Article 19 of Taiwan Fair Trade Law 194
7.2.5 Examples of Subject Matters not in Violation of the Law 195
7.2.6 Examples of Subject Matters in Violation of the Law 196
7.2.7 Examples of Subject Matters may Violate of the Law 196
7.2.8 Comparison between 2007 and 2009 Technology Licensing Arrangements Guidelines 198
7.3 POOLING ARRANGEMENTS CASE BEFORE SUPREME ADMINISTRATIVE COURT – CD-R PATENT POOL LICENSING ARRANGEMENTS 199
7.3.1 Back Ground 201
7.3.2 Taiwan FTC Determination 203
7.3.3 Supreme Administrative Court Final Ruling 208
7.3.4 Summary 212
7.4 SUMMARY 213
CHAPTER 8 COMPARISON FROM THE FUTURE PERSPECTIVE OF PATENT POOLING ARRANGEMENTS IN TAIWAN 215
8.1 THE COMPARISON FROM THE PERSPECTIVE OF COMPETITION POLICY AND LAW 215
8.1.1 The Framework: an Overview 215
8.1.2 The Key Aspects towards Patent Pooling Arrangements 224
8.2 THE COMPARISON FROM THE PERSPECTIVE OF LICENSING ARRANGEMENTS GUIDELINES 251
8.2.1 The Framework: an Overview 251
8.2.2 The Key Aspects towards Patent Pooling Arrangements 257
8.3 THE COMPARISON FROM THE PERSPECTIVE OF EXECUTION 277
8.4 SUMMARY 279
CHAPTER 9 CONCLUSION 282
LIST OF TABLES IX
TABLE 1: OVERVIEW OF WELL-KNOWN PATENT POOLING ARRANGEMENTS IX
TABLE 2: STANDARD-BASED PATENT POOL LICENSING ARRANGEMENTS IX
TABLE 3: PRO-COMPETITIVE EFFECTS TOWARDS PATENT POOLING ARRANGEMENTS IX
TABLE 4: ANTI-COMPETITIVE EFFECTS TOWARDS PATENT POOLING ARRANGEMENTS IX
TABLE 5: COMPARISON OF COMPETITION LAW IN US, EU, JAPAN AND TAIWAN IX
TABLE 6: COMPARISON OF IP LICENSING GUIDELINES IN US, EU, JAPAN AND TAIWAN IX
TABLE 7: COMPARISON OF EXECUTION OF COMPETITION POLICY IN US, EU, JAPAN AND TAIWAN IX
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