What is the meaning of patent pool and how to build it?

The role of patent pool (1) is to seek competitive advantage. It is impossible to monopolize an industry with only one core patent, but a patent pool composed of several core patents can achieve this goal. In practice, a company or an industry alliance is often led to formulate standards, and then the necessary patents in the standards are collected to build a patent pool. Standard makers control standards and even monopolize industries through patent pools to seek monopoly profits. It is precisely because of the attraction of monopoly interests that different multinational companies and even competitive enterprises form patent alliances, trying to bring their patented technologies into the standard and then participate in the distribution of high monopoly profits. This practice is also an important reason why the patent pool is questioned. It can be said that technical standards have spawned a patent pool. Patent pool can not only protect the patent rights of enterprises in the pool, but also curb the momentum of independent research and development by licensees and maintain the technological advantages of enterprises in the pool. (2) It is conducive to the popularization and application of patented technology. Due to the finer division of labor and the longer industrial chain, there are many manufacturers in an industry, and the technical correlation between upstream and downstream enterprises is getting higher and higher. A product involves more and more patents, forming a "patent jungle". These patents include barrier patents, complementary patents and competitive patents. There is an obstacle patent between the basic patent and the subsequent improved subordinate patent. Without the basic patent, the subordinate patent cannot be implemented, and it is difficult to commercialize the basic patent without the assistance of the subordinate patent. Therefore, cross-licensing between barrier patents is necessary. Complementary patents are independently developed and owned by different researchers. They are interdependent and become an inseparable part of the production of a product, and they need cross-licensing to play their role. Competitive patents refer to patents that can be substituted for each other. If they exist in the same patent pool, it will lead to monopoly. The upgrading of modern technology is accelerating. If a technology cannot be industrialized quickly, it will not only be unprofitable, but also the research and development costs will not be recovered. Constructing patent pool with barrier patents or complementary patents will eliminate the obstacles of patent cross-licensing and promote the popularization and application of technology. Patent pool can also provide technical information services for enterprises, increase opportunities for foreign licensing, and enable enterprises in the "pool" to obtain more licensing fees. (3) Reduce the transaction cost in patent licensing. Traditional patent licensing is that patent users request licenses from different patentees, which is time-consuming and laborious and hinders the implementation of technology. The patent pool brings together the core patented technologies of an industry and follows the principle of equality. No matter how many patents there are, the members of the patent pool are equal. Regardless of its function, every patent is treated equally. Members of the patent pool can use all patents in the pool free of charge, and the external licensing of patents follows the principle of "FRAND", that is, the principle of "fairness, reasonableness and non-discrimination", and a number of patents in the same technical field are licensed to users, and a unified charging standard is implemented. One-stop licensing provides a platform for enterprises to enjoy patents and reduces transaction costs. (4) Reducing patent disputes and litigation costs Patent pool can effectively resolve the technical risks brought by the "patent jungle". As for patent disputes among members of the patent pool, they can be resolved through internal consultation. The patent list and authorized user list of the patent pool are public, and infringement is easy to be found. Take MPEG patent pool as an example. Although MPEG Patent Management Company is not directly involved in solving patent infringement disputes involving its members, it is entirely up to the patentee to decide what measures to take. However, when using the license, MPEG Patent Management Company signed a contract with the licensee under the condition of ensuring no infringement. Once the infringement is found, the company will try its best to reach a license agreement on the premise of pursuing patent fees. If no agreement can be reached, it will be handled by the patentee. (5) through collective bargaining. Using patent pool to compete with multinational companies can not only solve the problem of poor anti-risk ability of individual enterprises, but also effectively deal with technical barriers and reduce trade friction. Many products in Wenzhou are mainly sold abroad, and their dependence on foreign trade is very high. In the case of repeated anti-dumping, large foreign enterprises have brand advantages and master industrial standards and core patented technologies. Only by forming industrial alliances and establishing patent pools, can they effectively resist the attacks of foreign patent strategies and break through non-tariff trade barriers. How to establish a patent pool? First, form technical standards and build the foundation of patent pool. The joint venture will form a technical alliance, and * * * and R&D will launch candidate technical standards, which will be adopted as legal standards by the government or standardization organizations, or as de facto standards by industry alliances. Once the technology alliance and the developed technology become technical standards, a patent pool is formed on this basis. Second, evaluate the necessary patents and establish a patent pool. A standard or technology will involve many patents, but in the end, only the necessary patents will enter the patent pool, and those patents are the necessary patents put into the patent pool, which need to be evaluated according to the method defined by the industry. Each evaluation is undertaken by three patent lawyers, and the evaluation process must be credible and recognized by the industry. Third, formulate intellectual property policies and set up intellectual property management institutions. The intellectual property policies that need to be formulated include the patent licensing principles and patent licensing fee standards that patent pool members abide by. As the head of the group, the intellectual property management institution is not only responsible for the intellectual property management of the patent pool, but also for managing the external licensing of the patent pool and handling patent disputes and patent litigation. Advantages and disadvantages of constructing and using patent pool 3. 1 positive factors and functions of patent pool 3. 1. 1 patent pool licensing is conducive to eliminating obstructive patents. The reason why patent pool license exists reasonably is mainly because it can eliminate obstructive patents. Members who enter the patent pool can continue to use all the patents in the portfolio for research and commercial activities without seeking a separate license for each patent. [2] After the patent pool alliance is formed through cross-licensing or patent pool licensing, as long as a good internal coordination mechanism is established through the agreement, the possible losses caused by patent confrontation before the alliance can be avoided, the uncertainty of research and development can be eliminated, and the high litigation cost can be reduced. 3. 1.2 patent pool license is beneficial for the licensee to industrialize the technology. Since the production of a complete product involves multiple patents of multiple rights holders, if an enterprise wants to produce the product without the permission of the patent pool, it must obtain licenses of various patented technologies from several patentees. To obtain this license, it is necessary to negotiate with each patentee, and it is necessary to ensure that the patent authorization negotiation of each necessary technology can be successful, otherwise the product may not be fully produced. And before the negotiation, it is necessary to analyze all the patented technologies involved in the products it will produce. If one of them is omitted, it may lead to the risk of tort litigation. Such complicated patent analysis and licensing negotiations lead to an increase in transaction costs, which is not conducive to encouraging other enterprises to develop and utilize patented technologies. Through patent pool licensing, the patent pool manager extracts the core essential patents of a product and puts them in a collection, and packages them for licensing to the licensee, so that a license can produce products, greatly accelerating the industrialization of the licensee's patented technology. 3. 1.3 patent pool license is conducive to saving transaction costs. With the permission of the patent pool, the transaction costs of both the patentee and the licensee may be saved. The patentee of each patent pool negotiates with the authorized patent pool manager and the licensees. The patent pool implements one-stop packaging license for other enterprises, and adopts a unified standard license agreement and charging standard, so that the licensed enterprises do not have to conduct lengthy patent license negotiations with the members of the patent pool alone, which greatly saves the transaction costs of both parties. 3. 1.4 patent pool is conducive to reducing patent disputes and litigation costs. Patent disputes between patent pool members can be resolved through internal consultation without resorting to court. The list of patents owned by the patent pool and the list of licensed enterprises will be made public. Once the company infringes the patent right, it will be easy to be found, and it will also reduce the occurrence of indirect infringement. The reduction of patent infringement means the reduction of patent litigation. Even if there is a patent dispute, the patent pool as a whole participates in the litigation on behalf of the members of the patent pool, which can greatly simplify the litigation procedure. Due to the high cost of patent litigation, the patent pool form can greatly save the litigation cost of both parties, which not only reduces the burden on enterprises, but also avoids the huge waste of social and legal resources. 3.2 Disadvantages in the operation of patent pool While the patent pool plays a great role in promoting the development of science and technology and economy, there are also many disadvantages and negative effects in its operation. 3.2. 1 There is a "junk patent", which hinders the utilization of technology. Patents entering the patent pool can only be core patents, that is, essential patents, which generally only account for about 10% of all patents. Many patents can't apply to enter the patent pool at all, but in reality, the patentee puts these patents into the patent pool for some purpose. After these patents joined the patent pool, they hindered the use of enterprises that needed these technologies. In this way, the starting point of patent pool construction is the opposite. In order to prevent others from obtaining or using similar or identical patents, a large number of "junk patents" are stored in the patent pool, which hinders the utilization of patented technology and the spread of technical knowledge. 3.2.2 The existence of a large number of "bundled licenses" has led to the abuse of patent pools. Generally speaking, the patent pool should follow the principle of patent complementarity, otherwise it will be suspected of "tying" and the patent pool will be abused. The complementary principle of patent pool is the basic basis for judging whether the joint authorization of patent pool is legal or not. The so-called "bundling license" generally refers to the behavior that when the licensor licenses two or more patents together, the licensee must buy other patents in order to get the patent he wants. In the process of patent pool licensing, all patents in the patent pool are often packaged licenses, and the licensee either pays the licensing fee for the whole patent pool or gives up this transaction method. Generally speaking, it is not allowed to ask for permission only for some patents in the patent pool. In fact, the licensee often finds that the patent pool license he paid for includes many patents or other services that he doesn't need besides the patent license he wants. For example, in many patent pool licenses, bundling license is to mix unnecessary patents into the patent pool, forcing the licensee to accept other unnecessary technologies and the necessary patented technologies it needs, and the licensee has no choice but to obtain the patented technologies it needs, thus causing the abuse of bundling license rights in the patent pool. 3.2.3 Patent pool covers up invalid patents. Due to the large number of patents in the patent pool, if the necessary patents entering the patent pool are not strictly examined, it may lead to invalid patents, patents being declared invalid and patents being applied to enter the patent pool, thus defrauding the licensee of patent fees. It is against the spirit of patent protection that a single patent pool packages invalid patents and patent applications into the whole patent pool and licenses them together. At present, some patent pools actually violate the original intention of building patent pools and are suspected of abusing intellectual property rights and violating anti-monopoly laws. Among them, three patent pools around DVD specification and MPEG series patent pool maintained by MPEG LA all have this problem. [3] 3.2.4 Patent pool license fee is full of traps. Because patent pool license is usually a package license, the calculation of patent license fee may be full of traps. If unnecessary patents and invalid patents hitchhike into the patent pool, the patent license fee will increase, which will increase the cost of the licensee. Therefore, every patentee can use the license fee and its distribution mechanism to divide the market or control the price of downstream products, especially when the patent pool technology occupies a large market share, this role of restricting competition is becoming more and more obvious.