本論文主要係從美國,歐盟及日本之競爭法來探討台灣公平交易法與專利集中授權之觀點,並進而針對台灣技術審查原則之問題點提出建議及看法,以作為相關單位之建議方向.

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.

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