Patent Pools CP - Michigan 7 2024 HHRS

Patent Pools CP
Notes
This counterplan mandates the federal government to create patent pools, which are essentially agreements that patent holders agree to share patents given that they first contribute first and license out their collective pool using the revenue generated to pay to each owner.
I think this counterplan is pretty strong, there is still lots of research to be done since I’m not even sure how it would function but the lit is definitely there for you to run this CP, could be a plank for an adv cp too. It could essentially solve any emerging tech impact, could be other add ons.
Could definitely explore international organizations of patent pools with better internals
1NC
5G Shell---1NC
The United States federal government should significantly strengthen its protection of domestic intellectual property rights in patents by establishing patent pools for emerging technologies.
The CP solves for innovation, patent thickets, and litigations
Igor Nikolic and Niccolò Galli 22, Igor Nikolic is a fellow at the European University Institute and Niccolò Galli is a Research Associate at European University Institute, 5-1-2022, "Patent pools in 5G: The principles for facilitating pool licensing," https://www.sciencedirect.com/science/article/abs/pii/S0308596121001919//susu
Patent pools are the oldest type of patent aggregators. They bundle patents from different owners and license them back to their members, outside implementers or both. Patent pools emerged in the US since the second half of the 19th century to provide freedom- to-operate to contributing members rather than licensing the pooled technologies to non-members. After a period of antitrust hostility in the US beginning in the mid-1900, patent pools gradually re-emerged during the 1980s for audio-visual technologies, such as the CD Audio pool between Philips, Sony and Pioneer. The MPEG-2 patent pool, approved by the US Department of Justice in 1997, set the conditions for modern pools over highly complex and fragmented information communication technology (ICT) stan- dards. After that, several standard-related pools followed, including for disks, audio-video compression, and telecommunication technologies.
The structure of pool is similar. Participation in pools requires agreement on both the internal management of pooled patents and the pool’s licensing terms and conditions. A pool member can be appointed as licensing administrator on behalf of all members, or pool members may entrust specialised entities as independent licensing administrators. By design, independent licensing administrators avoid conflicts of interest between pool members and implementers since their success rests on bringing both market sides aboard through impartial services at market-based prices. Further, pool members can monitor independent administrators with less antitrust suspicion, while these latter do not risk retaliatory infringement lawsuits if suing alleged infringers.
Without downstream product market operations, patent pools belong to the non-practising entity (NPE) type of patent aggregators and specific features distinguish them from other NPEs. Unlike R&D-only firms or universities, patent pools do not prosecute their patents, but only license their members’ patents. In contrast to patent assertion entities (PAEs) and defensive patent funds, they do not buy patents nor keep the licensing revenue to themselves but share it with members by pre-agreed formulas. Moreover, unless pools exclusively in-license the pooled patents, they cannot enforce them as they lack infringement legal standing.
Patent pools’ characteristics are prone for the complex 5G and IoT environment. Pools reduce transaction costs by offering a one- stop shop to implementers who need to conclude only one licence for many patents instead of bilateral licenses with each patentee. Merges and Mattioli estimate significant transaction costs savings by pool licensing. With an average estimation of negotiating a non- litigious patent license of at least $50,000, MPEG and HEVC patent pools saved approximately $600 million and $400 million in transaction costs, respectively. Thus, patent pool licensing can be more profitable for patentees and cheaper for implementers since they avoid countless individual licensing negotiations and possible litigation and provide more efficient royalty collection and wider licensing reach for SEP owners. Consequently, pools can address both the 5G patent thicket and patent infringement jungle by enabling implementers to achieve wide freedom-to-operate easily and plan their licensing costs. At the same time, SEP owners can more easily reach more licensees from diverse IoT industries than licensing individually.
Moreover, patent pools permit economic specialisation and the division of innovation labour, allowing technology firms to focus on R&D efforts and outsource patent monetisation and enforcement to specialised experts, which provide them with a quick return on investment. Meanwhile, implementers can develop downstream products without identifying and negotiating licences with individual SEP owners and avoiding infringement litigation risks.
Standard related pools also bring transparency and predictability to SEP licensing by publishing their FRAND offers, promoting non-discriminatory licensing. Pools’ royalties estimate the aggregate royalty for a standard, making it possible for implementers to plan their licensing costs. In addition, the mandatory essentiality checks of pooled patents weed out non-essential patents, increasing trust in standardisation. Further, the publication of pooled SEPs, summary claim charts mapping SEPs to standards features, and existing licensees enables implementers to verify whether they are infringing patents and whether their competitors are licensed.
Lastly, pools’ simplified licensing approach helps jumpstart the positive feedback loop between innovation in the upstream technology market and the downstream product markets. A stable licensing environment through which implementers can secure the requisite rights enables more rapid standard deployment and accelerates innovation diffusion. With all these characteristics, pools encourage innovation, simplifying the implementation and reward of standardisation.
Patent pools have downsides too. If they include substitute patents, namely patents covering alternative technologies, pools will lead to a loss of competition like a price-fixing cartel.3However, substitutability is rarely a concern in standard-related pools as SEPs are complementary, and pools of complementary patents resolve royalty stacking and double-marginalisation, leading to lower royalties than independent pricing. The primary concern with standard related pools is potential collusion between SEP owners who may use pools to fix prices and outputs. Thus, pro-competitive pools include safeguards to prevent sensitive information-sharing, ensure their independence from members, screen exclusivity clauses for potential anticompetitive effects and allow members’ independent licensing.
Another argument against pools is that they shield weak patents from challenges as potential licensees have reduced incentives to test their validity. While this may be a problem in small pools, the royalty rate of pools consisting of thousands of SEPs can account for the likely probability of some patents’ invalidity. Therefore, challenging only a few patents from a portfolio of thousands would not impact overall royalties3 A prospective licensee would have to invalidate a significant share of patents in a portfolio for a meaningful effect. For example, if there are ten patents in a pool, invalidating seven might reduce royalties. However, parties may simply negotiate the invalidity probability into the royalty rate as an alternative to costly patent litigation. The price of a pool’s license can reflect the aggregate value of all pooled patents, not the sum of the individual patent values. This is true especially for standards where a pool determines the aggregate royalty based on the value the whole standard brings to end products, regardless of individual SEPs’ value. Thus, identifying the number of truly valid patents is more of a concern for licensors in their internal division of pool’s licensing revenues than for licensees, as Subsection 6.3. Argues.
Overall, competition policy welcomes standard-related pools consisting of complementary patents. The US and EU antitrust authorities have guidelines for assessing the competitive conditions for pool formation. Typically, competition authorities will not challenge patent pools following specific criteria such as i) voluntary and open membership; ii) independently verified essentiality of pooled patents; iii) FRAND licensing terms and conditions; iv) members’ freedom to license independently and discounts to less than full portfolio license; v) grant-back clauses limited to essential patents, leaving licensees’ freedom to develop competing technologies and vi) freedom to challenge pooled patents’ validity and essentiality.
Following the competition requirements many successful patent pools have been formed in consumer electronics industries. Baron and Pohlman identify no fewer than fifty patent pools relating to digital disks and audio-video standards, run mainly by a few in- dependent administrators, such as Via Licensing, or Access Advance. While often these pools do not cover the totality of SEP owners and SEPs, they have generally been regarded as successful in facilitating licensing and ensuring smooth standards implementation.
Patent thickets and litigations will shatter 5G developments
Igor Nikolic and Niccolò Galli 22, Igor Nikolic is a fellow at the European University Institute and Niccolò Galli is a Research Associate at European University Institute, 5-1-2022, "Patent pools in 5G: The principles for facilitating pool licensing," https://www.sciencedirect.com/science/article/abs/pii/S0308596121001919//susu
1.1 Revisiting the patent thickets of the telecommunications industry
Patent thicket concerns never looked so real as for 5G, which is more complex, patented, and fragmented than older cellular standards. 5G relies on many different technologies, some employed by older generations of standards ensuring backwards compatibility, while others are new, such as a new radio interface, massive multi-input multi-output or heterogeneous cells
An increasing number of companies are declaring 5G SEPs to the relevant Standard-Development Organisations (SDOs), mainly to ETSI, with SEPs for older generations re-declared as 5G SEPs. According to one estimate, declared 5G SEPs surpass 95,000, compared to the 4G 45,000 and 3G 39,000 declared ones. The ETSI database alone contains 25,070 disclosed 5G SEP families. The trend of declared families is exponential, from 12,000 in March 2019 to more than 20,000 in June 2020, and many more still to come in parallel with further releases of 5G specifications by 3GPP. As a result, 5G SEP figures eclipse those of 4G, which had less than 6000 declared SEPs in a comparable early time such as 2013. Admittedly, not all declared SEPs are truly essential because of the well-known over- declaration problem. Some studies estimate essentiality ratios of declared 5G SEPs to vary between 20 and 30%, with significant deviations by SEP holder. Nevertheless, even using essentiality filters, the resulting numbers of actual 5G SEP families are still in the four digits figure, such as over 1500 5G SEP families each for LG, Nokia, Huawei, and Samsung as of 2019.
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However, more important is the number of SEP owners. Even with many SEPs, patent thicket concerns would not arise if a few entities would hold them since implementers could successfully identify and negotiate with those few patentees. However, 5G SEPs ownership is also highly fragmented. Estimates are that over 30 companies declared 5G SEPs back in 2019, doubling in 2020, exceeding 100 as of February 2021 and growing with new standard releases. Although the ownership is highly skewed, any company with a single true 5G SEP is a potential gatekeeper to the diffusion of 5G.
The disaggregated ownership of complementary SEPs raises the royalty stacking concern, where individual SEP royalties can stack up, making the royalty excessive in the aggregate. Economists predict that an aggregate price would be higher when complementary assets are priced independently than if a monopolist prices all complementary assets together. Such an issue, known as the Cournot complements problem, depends on double marginalisation where each licensor adds its margin and maximises its pricing independently of complementary suppliers. Currently, the top five 5G SEP owners have announced their 5G royalty rates ranging from $0.36 to $13, already producing a stack of about $25 for a $500 phone (Table 1).
While the announced 5G SEP stack may be justified by the underlying value of the technology and is not insurmountable in itself, if the remaining hundreds of 5G SEP owners start monetising SEPs, a prohibitively high cumulative royalty can ensue. Moreover, each 5G application sector perceives the royalty stack differently. For example, $25 might be an appropriate royalty for devices using 5G fully, but hardly be suitable for other products that use only limited 5G functionalities – like smart utility meters.
Moreover, other factors complicate SEP licensing in the IoT. The IoT devices will not only use 5G and other connectivity standards like Wi-Fi or Bluetooth but will also cover many different standards for quality, cybersecurity, interoperability between IoT devices and cloud services and more. The myriad of standards exacerbates the IoT patent thickets concerns. Additionally, firms coming from diverse IoT industries may have little experience with SEPs or divergent IP licensing practices than the telecommunications industry. Most IoT companies will be SMEs with no or limited IP knowledge and lacking dedicated licensing budgets. Thus, the transaction costs of obtaining bilateral licences for 5G and other IoT related standards may be prohibitively expensive for many IoT implementers.
2.2 The infringement jungle in the IoT
Conversely, SEP owners will experience a 5G patent infringement jungle. As seen, 5G applications go beyond previous generations of cellular standards, making it the first general-purpose mobile technology, useable by diverse smart objects in any industry. The sheer plurality of implementations and uses will create mass SEP infringement problems, with patentees having to identify, negotiate, possibly sue, and conclude bilateral licences with every IoT manufacturer from different industries and countries. Such a bilateral licensing model becomes prohibitively expensive and practically unfeasible.
Moreover, many 5G implementers are either too big to be enjoined in every territory of infringement (the ‘lions’ of the jungle) or too small to be worth the cost of a lawsuit (the ‘ants’ of the jungle). Implementers would also be reluctant to take licences unless all their competitors are licensed as well, otherwise risking cost-disadvantages due to higher licensing costs than their unlicensed com- petitors. Consequently, implementers may rationally hold out from concluding licenses, raising patent enforcement costs to SEP owners, and diminishing innovation returns from R&D.
The first licensing disputes of the 5G SEP infringement jungle have already started in the automotive sector, where cars are becoming “smartphones on wheels”. One study estimates that by 2023 nearly 70% of new vehicles worldwide will be shipped with embedded connectivity. The conditions for licensing 5G SEPs produce tensions since SEP holders and automakers disagree over royalties for cellular connectivity of connected cars. Since late 2018, patent infringement lawsuits against automotive companies, such as Tesla, and competition law complaints against cellular SEP holders, such as Nokia, were initiated globally. Licensing disputes are only likely to escalate in other IoT industries and products implementing 5G.
5G military modenerization solves for emerging threats
Rojeena Bajracharya 23, Rojeena Bajracharya is a Postdoctoral Researcher at Mälardalen University and has a PhD in Information and Communication Engineering at Yeungnam University, 8-7-2023, "5g And Beyond Private Military Communication: Trend, Requirements, Challenges And Enablers," ResearchGate, https://www.researchgate.net/publication/372914215_5G_and_Beyond_Private_Military_Communication_Trend_Requirements_Challenges_and_Enablers//susu
SECTION V.
Communication and Security Challenges in Military Communication
Emerging 5GB connectivity, specifically for the military, will be considerably more than just quick-connect phone conversations and rapid multimedia downloads as shown in Figure 4. In fact, 5GB may become a reality what defense commanders have referred to as the “infosphere [20]”, where the data from video, audio, sensors, targets, surveillance, or even the sights on remote weapons can receive it quickly and easily from a combat’s working environment, such as the cockpit of a plane or the bridge of a ship. With infosphere, it is expected to allow combats to manage and access remote appliances/equipment, workplace gadgets, training instruments, and computing tools and to communicate with peers anywhere in the world. 5GB aptitudes will enable vastly improved intelligence, surveillance, and reconnaissance (ISR), as well as faster and more secure command and control, more well-organized logistics, crowded unmanned vehicles, and widespread practice of virtual reality and augmented reality for simulation, drill, and mission trials. Moreover, instant connection anywhere on earth, intelligent hyper-sonic arms with on-air re-targeting, abundant access to mission-critical information of the battleground, and unmanned fighter aircraft/ drones that can fly safely alongside passenger airplanes in commercial airspace are all possibilities with 5GB.
Despite tremendous breakthroughs in 5GB commercial communication technology, the majority of which can be utilized by defense services, military-focused research and updates in 5GB communications and networking are still needed. It is important to note that the specific techniques employed in military communication may vary based on the nature of the operation, the level of sensitivity of the information, and the available technology at a given time. Military organizations continuously evolve their communication strategies to address emerging threats and incorporate new technologies to enhance security and resilience. Some of the techniques that are designed to protect sensitive information, prevent unauthorized access, ensure reliable transmission, and maintain operational effectiveness are as follows.
Biotech Shell---1NC
The United States federal government should significantly strengthen its protection of domestic intellectual property rights in patents by establishing patent pools for emerging technologies.
Patent Pools solve for innovation, biotech thickets and litigations
Sherin Priyan and Gouri Gargate 23, Sherin Priyan is a PhD candidate at IIT and has her masters in law in Intellectual Property Law from Rajiv Gandhi School of Intellectual Property Law, Gouri Gargate has a PhD in philosophy from IIT and is a reasearcher in IP law and management at IIT, 30 January 2023, " The Journal of World Intellectual Property: Vol 26, No 2," Wiley Online Library, https://onlinelibrary.wiley.com/toc/17471796/2023/26/2//susu
6.1 Benefits from the pooling of pharmaceutical patents
Articles 7 and 8 of TRIPS agreement provide the objectives and principles of the TRIPS agreement and include measures to improve social and economic welfare and protecting public health and nutrition.
The major benefit of patent pools is reducing transaction costs in licensing. Much of th

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