IP咖啡第二期：专利池与技术标准.ppt

cv Willard K. Tom February 18, 2013 A U.S. Perspective on Huawei v. IDC: What Chinese Companies Need to Know About Antitrust and Standard-Setting in the U.S. What the Patent Troll Problem Is and Is Not Nothing wrong with buying rice or copper from a trader instead of from a farmer or miner. Efficiencies from secondary markets The problems come from: Patent hold-up The absence of mutually assured destruction * Patent Holdup in the Standard-Setting Context Patent hold-up: leverage gained from lock-in * Patent hold-up:  First-level Proposed Solutions * Disclosure requirements Ex-ante bargaining RAND/FRAND The Problems With FRAND What does FRAND mean? Are injunctions/exclusion orders available? When? What royalty or damages? Process for determining? Scope of grantbacks? Does FRAND commitment run with the patent? “Privateering” How is it enforced (defense, breach, antitrust)? Patent trolls make all of these problems worse. The Patent Troll Problem Contrast Huawei v. Interdigital with Huawei v. a hypothetical competitor “If you enjoin me, I’ll enjoin you” doesn’t work anymore. The risk of exorbitant damages or royalties runs only in one direction. Bargaining takes place against a backdrop of what the courts or other governmental institutions will do. Mass demand letters play on the cost and uncertainty of litigation. Governments are finally coming to grips with these issues. But U.S. courts and agencies are also conscious of the need to reward real inventors. * Patent hold-up: Injunctions * eBay v. MercExchange: irreparable injury inadequate remedies at law balance of hardships public interest “By committing to license its patents on FRAND terms, Motorola . . . implicitly acknowledged that a royalty is adequate compensation . . . .” “the causal nexus inquiry . . . informs . . . whether the patentee seeks to leverage its patent . . . beyond that which the inventive contribution and value of the patent warrant ” Patent hold-up: ITC Exclusion Orders * Federal Circ