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Interesting article discussing patent pools and 4G wireless

It can be difficult for companies to design products according to a given technical standard, when that standard is protected by key patents held by different companies. The traditional approach requires the prospective licensee to negotiate individual license agreements with each patent owner, and that can be time consuming and prohibitively expensive. Patent pools provide an alternative approach, wherein the patents essential to practicing a technical standard are pooled together and managed by a licensing adminstrator. The licensing administrator is empowered to grant a standardized license on all patents in the pool, providing prospective licensees with a one-stop shop for licensing. In this way, patent pools provide licensing cost transparency, and greatly simplify the process of acquiring the patent licenses necessary to practice the technical standard.

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Why a patentability search doesn’t necessarily tell you much about infringement risks

To understand why a patentability search doesn’t answer the infringement question, consider the following scenario: You invent “A” and ask a patent attorney to investigate the patentability of “A”. The patent attorney diligently compares “A” to what is described in the existing patent databases, to see whether “A” has been described before, in which case “A” is not novel and not eligible for patent protection. Further, the patent attorney looks in the patent databases to see whether things similar to “A” have been described, and whether the bits and pieces of “A” have been described in multiple patents in a way that would be obvious to combine together, to produce “A.”

That entire effort focuses on what the prior art describes, where the term “prior art” includes all pre-dating patents and pre-dating published patent applications. (The prior art actually includes patent and non-patent publications, but this posting focuses on patents as prior art because its focus is on the possibility of infringement.) Critically, the patentability assessment effort does not require the patent attorney to investigate what any prior patent actually claims as its patented invention. The fact that “A” or parts of “A” are described in a patent doesn’t necessarily mean that “A” or something similar to “A” is claimed by that patent. Thus, a patent attorney can perform an effective patentability search without having to sort the fine details of what a given patent’s claims actually cover, or whether those claims are valid.

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