A Study on Technical Standards,Patent Pool and Concerted Action

• Main Authors: Yi-Ting Liao, 廖宜庭
• Other Authors: Tz-Ru Liu
• Format: Others
• Language: zh-TW
• Published: 2011
• Online Access: http://ndltd.ncl.edu.tw/handle/66406151715654623362

碩士 === 中興大學 === 科技法律研究所 === 99 === In the domain of intellectual property rights, “technical standards” have been the most widely discussed issue in recent years. For industries, a real competitive advantage can only be formed if one leads the standards and controls the right to establish the standards. In terms of technology and the global economy, technical standards make a significant contribution to economic and technological development. Once the standards are formed, compatibility issues among products and components may be resolved and enterprises may simplify their production and reduce their costs. However, the advancement of technology makes it less and less common for one single enterprise to possess all patented technologies to manufacture products or services that are compliant with standard specifications. More commonly, several large enterprises respectively possess the patented technologies required to manufacture products or services that are compliant with standard specifications. Thus, in order to legally manufacture products or services that are compliant with these standards, licenses must be obtained from such enterprises one by one. However, under such a licensing model, efficiency is very low and the licensing will require significant negotiation costs. Thus there is the license model of “patent pool”, which allows all patented technologies compliant with the standards to be granted by a one-time license. However, the operation of a patent pool may incur many disputes under competition law, especially concerted action. Concerted action restricts market competition, hinders price adjustment functions and endangers consumer interests. Thus the Fair Trade Act strictly prohibits concerted action in principle. However, there are many different forms of concerted action. There are exceptions to the prohibition if the action is beneficial to the global economy or public interest and approved by the Fair Trade Commission. If a patent pool is formed by several enterprises with a horizontal competition relationship and there is any act of joint negotiation or restriction among such enterprises, it may constitute concerted action basically, which is a violation of law and will be controlled by the Fair Trade Act. Today, forming a patent pool has become a trend of technological development. If the alliance indeed has a positive effect on the economy, its existence should be permitted. However, how can a “violation of law” be permitted? This paper will positively discuss the issue of legality of patent pool as concerted action from the Fair Trade Act of the Republic of China and the principles for processing technical license agreement cases by the Fair Trade Commission of the Executive Yuan, as well as the 1995 Antitrust Guidelines for the Licensing of Intellectual Property and the 2000 Antitrust Guidelines for Collaboration among Competitors, White Paper on Patent Pooling and the Report on Antitrust Enforcement and Intellectual Property Rights. In addition to application with the competent authority for approval of concerted action, I will also try to consolidate the conditions required for a positive determination of benefit for the overall economy and public interest, with positive effect on market competition, and thus increase the likelihood of being granted approval by the competent authority and subsequent legal operation.