| Summary: | 碩士 === 東吳大學 === 法律學系 === 100 === Since the 1980s, "Patent Pools" has gradually become one of the methods for enterprises to reduce legal risks and manufacturing costs when they are confronting with Patent Thicket issues caused by numerous patents. "Patent Pools", as defined in compliance with U.S. patent laws, a patent pool is an agreement involving two or more patent owners to aggregate their patents and to license them to one another or to third parties, and usually offers standard licensing terms to licensees and allocate a portion of the patent licensing fees to patentee according to a pre-set formula or procedure. The patent pools, which package patentees and related essential patents required for product manufacturing or services, license internal members or external patentees by ways of collective licensing or individual licensing. The patent pools have the advantages of integrating patent resources, reducing litigation risks with regard to patent infringement, and saving the trade costs of countless licensing to avoid staggering expenses which make new products unavailable for rapid popularizing and profit making; but in another aspect of view, the patent pools can also restrict competition, wherein members of the patent pools may mutually (1) exchange sensitive information, (2) fix a price collectively, (3) exclude price competition of downstream products, and (4) inhibit the development of other substitutive technologies, for the patentees, they are required to pay unnecessary patent royalties (tie-in sale) and not to research and develop, manufacture and sell products competitive to those of the patentees, the sale prices or sale regions of licensed products are restricted, the patentees are banned from disputing the validity of the patents, the patentees are required to fulfill certain obligations of acts or omissions after the license expires, or receive unreasonable royalties, etc., therefore, the patent pools may be accused of unfair competition, which is problem like a double-edged sword and needs to be probed urgently.
The Innovation Network Corporation of Japan (INCI) was established in 2009; "Intellectual Discovery ", the first intellectual property management company founded by citizens and government jointly in South Korean, also launched more than 10 Patent Pools officially in August 2011; and an industry alliance of LED patent technologies, namely, "Shenzhen LED Patent Pools", was also established in 2011 in mainland China. Confronting threats from international industries similar to the patent pools in Japan, South Korea, mainland China and the like, to enhance industrial competitiveness in Taiwan, our Industrial Technology Research Institute (ITRI) also extensively invited enterprise representatives of various industries to constitute Patent Pools on January 8th, 2010, to hopefully grant more protections to local manufacturers by virtue of ITRI’s strengths on patent research and development. Fair Trade Commission (hereinafter referred to as "FTC") in Taiwan approved the establishment of "One-Blue, LLC" on March 31st, 2011, and the government actively promotes the establishment of "intellectual property fund company" (IP Bank).
Over the years, it seems that competent authorities in Taiwan haven’t improved the norms on the patent pools with respect to the suitability of the Fair Trade Laws on the aspect of legal actions related to patent licensing and expertise licensing, and haven’t been able to provide a clear guideline for practitioners to follow when they are engaged in the patent pools. The complementary patent dispute on the Philips Disc case and issues like delayed and suspended development of a number of industries highly depending on the patent pools are all in need of cautious disposal through strengthening the Fair Trade Laws and other stipulated norms. "One-Blue, LLC" is just an example. Although FTC has approved the establishment of its patent pools, the trend of its future development still remains to be seen.
In addition, from the perspective of international competition, if the patent pools are constituted on a national level, an unfair competition act in violation of the competition laws may be conducted and the general international antitrust consensus is challenged, which would be sanctioned by various countries brutally due to inconsistence with the public interest. Therefore, it's more obliged to deliberate over the normative trends of the patent pools under the competition laws of various countries and face the issues cautiously, so as not to affect the overall economic benefits of Taiwan in international community.
The paper will discuss the current status and controversies confronted in Taiwan and propose solutions and suggestions by referring to U.S. competition laws against patent misuse situations and the "Patent Misuse Doctrine" established by the courts of U.S and comparing the relevant norms of European Union and Japan, so as to present legal references to the patent pools in Taiwan.
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