美国司法部认为知识产权交易许可模式有利创新

Earlier this week word came from theIntellectual Property Exchange International Inc. (IPXI) that the U.S.Department of Justice Antitrust Division issued its Business Review Letter(BRL) upon the culmination of its eight-month review. The DOJ believes that theIP Exchange business model proposed by IPXI is capable of producing marketefficiencies in the patent licensing arena and is likely to be pro-innovation.Although no permission is required of the DOJ before IPXI opens its exchange,having this review of the DOJ Antitrust Division complete has to make IPXI andExchange participants much more at ease as the move closer toward their attemptto revolutionize IP licensing.

本周早些时候，知识产权国际交易公司（IPXI）传来消息：美国司法部反垄断局在八个月审查将近结束之时对其发布了商业审查信件。美国司法部认为，知识产权国际交易公司提出的知识产权交易许可商业模式在专利许可领域能够产生市场效率，而且可能支持创新。虽然美国司法部并未要求知识产权国际交易公司在实施专利交易许可之前需经其进行确认，但是美国司法部反垄断局的这一审查已使知识产权国际交易公司以及其他的专利交易许可机构更放心地朝他们试图变革知识产权使用许可的目标走得更近。

But who is IPXI and what are they trying toaccomplish?

IPXI is the first financial exchange thatfacilitates non-exclusive licensing and trading of intellectual property rightswith market-based pricing and standardized terms. At its core is what IPXIcalls a“Unit License Right”or ULR. According to IPXI, “ULR contracts transform private licensing of technology intoconsumable and tradable products, allowing for improved market transparency,smooth technology transfers, and increased efficiencies.”Indeed,Marshall Phelps, an IPXI Board Member who is widely known as a pioneer in thefield of IP licensing, including implementing groundbreaking initiatives forboth Microsoft and IBM, says: “the new model that IPXI offers is a major breakthrough in the waythat IP will be licensed on a non-exclusive basis.”

知识产权国际交易公司是第一个通过市场基准定价和标准化条款以促进非独占专利许可和知识产权股权交易的金融交易所。知识产权国际交易公司的核心为“单位许可证权利”（ULR）。对于知识产权国际交易公司而言，单位许可证权利合同可以将私人授权的技术转化为可消费和可贸易的产品，而且可以增进市场透明度，消除技术转让的障碍，提高技术利用效率。的确，知识产权国际交易公司董事会的成员之一马歇尔·费尔普斯（知识产权许可领域的先驱，因为微软和IBM公司实施开拓性的举措而广为人知）说：“知识产权国际交易公司提供的建立在非排他基础上的新型的知识产权许可商业模式是一次重大的突破。”

It sounds almost too good to be true I know,but when I looked at the IPXI model I reached the same conclusion as the DOJ.It is pro-patent and is likely to be pro-innovation, further fosteringinnovation, research and development.

When IPXI first came across my radar screenI was a little concerned.See Will an Intellectual Property Licensing ExchangeWork? They said that the acquisition of rights they would foster wouldeliminate the inefficiencies that consume traditional bilateral licensingefforts because IPXI would act as an intermediary between patent owners andpotential licensees. Essentially, there would be rights exchanged on an openmarket. That is all good, but there seemed to be some buzz words that one mightassociate with the anti-patent community, such as referring to impedimentswithin the transfer of rights being “artificial supply-side constraints.”The anti-patent community uses thephrase “artificial supply-side constraints” as code for “patent.” They thinkthat patents themselves are “artificial supply-side constraints.” So my initial assessment wascautious.

Then I spoke with IPXI President and ChiefExecutive Officer Gerard Pannekoek, who filled me in on more of the details andit became clear to me that this new model was both exciting, but alsopro-patent and pro-innovation. The constraints IPXI was talking about relatedto the reality that it takes time and money to negotiate any deal, and patentdeals in particular.Smaller enterprises don’t have the luxury to afford to hireattorneys to negotiate licensing deals for small quantities, for example. Yet,there is a real opportunity for innovators to license rights non-exclusively ina commoditized way.

On June 17, 2012, in an article titled IPExchange Brings Market Principles to Patent Rights Acquisition, I wrote:

The IPXI model seems very pro-innovation and very pro-patent. Itjust realizes that there are

a lot of business externalities that work to prevent patent ownersand licensees from closing

deals. These externalities get in the way of new technologies beingdeveloped and businesses

flourishing.

2012年6月17日，在“知识产权交易：将市场原则引入专利权收购领域”一文中，我

写道：知识产权国际交易公司的模式似乎是支持创新与专利的。它认识到大量的商业外

部性都努力阻止专利权人和专利被许可人关闭交易。这些外部性阻碍新技术和企

业的蓬勃发展。

The“little guys”are disproportionately unable to accept the transaction costsassociated

with finding and ultimately doing deals. This means the smallbusinesses and start-ups that

are the backbone of the U.S. economy are disadvantaged. If IPXI canchange the externality

equation then we should see a significant shift of resources intothe hands of those who are

most likely to innovate; those same people who are most likely toalso hire new employees.

Now I understand why so many Universities are jumping on board…

“小家伙”无法接受与发现并最终进行交易有关的不成比例的交易成本。这就意味着小

型企业和作为美国经济支柱的初创公司处于不利地位。如果知识产权国际交易公司能够

改变这一外部性等式，那么我们就能看到一个具有重要意义的转变：资源集中于那些最

有可能创新的公司之手；那些最有可能雇佣新员工的人之手。现在我明白了为什

么那么多的大学都对此趋之若鹜……

No doubt that the goal of IPXI isambitious. As Pannekoek told me, they are seeking nothing sort of“making IP atruly new asset class.”The model seems to be pro-patent, pro-innovation and pro-smallbusiness start-up, so I am all in favor of it and hope it is successful.

The aforementioned BRL was requested byIPXI, and while not required for IPXI to launch the Exchange thought it prudentin order to provide certainty to its members, market participants and prospects.The hope was that the BRL would confirm that the IPXI model providesefficiencies to the market and does not warrant enforcement action by the DOJ.The result of the BRL process was recognition that the IPXI business modelseems pro-innovation and capable of creating market efficiencies.

前面提及的BRL是知识产权国际交易公司请求的，在此期间（BRL期间）为了向其成员、市场参与者和潜在客户提供确定性而没有启动交易被认为是谨慎的。希望在于BRL将确认知识产权国际交易公司模式有利于市场效率，而无需美国司法部保证执法。BRL程序的结果认为：知识产权国际交易公司的商业模式支持创新并且具有创造市场效率的效能。

In regard to increased licensingefficiency, the letter also stated:“…IPXI has the potential to benefit both patent holders and users oftechnology with lower transaction costs and more efficient matching oflicensors and licensees. The result may produce savings for downstreamconsumers.”

The BRL also went on to address thebenefits to licensees price transparency in the IPXI model: “By increasingprice transparency, licensees may be able to manage their IP budgets with moreprecision and make efficient research and development decisions that loweroverall costs.” In addition, the letter indicated that if IPXI’s model canfacilitate and advance licensing based on “F/RAND” or “fair, reasonable andnondiscriminatory terms”, “…it may generate significant efficiencies.”

BRL继续叙述知识产权国际交易公司模式中的许可价格透明度的好处：“通过提高价格透明度，被许可人可以更加精确地管理他们的知识产权预算，并制定有效的研究和发展决策从而降低总体成本。”此外，这封信表明，如果知识产权国际交易公司模式能够促进和推动以“F/RAND”或者“公平、合理、非歧视条款”为基础的专利许可，“……它可能产生显著的功效。”

The DOJ further noted certain potentialbenefits that IPXI can bring to the market when patents of more than one ownerare offered together. The Department stated: “IPXI’s platform for pooled ULRs has thepotential to generate additional efficiencies by reducing the time and expenseof acquiring and disseminating all the pooled patents to potential licensees,reducing the amount of stacked royalties, clearing blocking positions, andintegrating technologies that are necessary to practice an industry standard orfield of use.”

美国司法部进一步指出，当不止一个专利拥有者提供专利之时，知识产权国际交易公司能够带给市场的某些潜在的好处。美国司法部阐明：“知识产权国际交易公司的平台对于汇集的ULRs通过减少将所有汇集专利获取和传播给潜在被许可人所花费的时间和费用，减少大量的堆叠版税，清除阻塞位置并且集成对于实行行业标准或者使用领域所必须的技术，具有产生额外效率的可能性。

IPXI President and Chief Executive OfficerGerard Pannekoek said: “We believe this letter from the Department of Justice confirms ourlong-standing view that IPXI is innovative and promotes efficiencies. With thisreview complete, we anticipate announcing very soon the official launch of themarketing period for our first offerings that will pave the way for trading onthe Exchange.”

Despite the reluctance of DOJ to commitwith respect to their future intentions, this development is unquestionablygreat news for IPXI. An acknowledgement from the DOJ that the business model iscapable of producing market efficiencies and is pro-innovation has to mean thatthere are not envisioned antitrust issues since antitrust violations bydefinition create market inefficiency. Further, in recent years governmentconcern in the high-tech sector has focused on what is believed to cause a dragon innovation. A pro-innovation, patent-friendly, market efficient businessmodel should have no worry or concern relating to enforcement of antitrustlaws.