Antitrust for Patent Pools: A Century of Policy Evolution

Abstract

This paper reviews the antitrust treatment of patent pooling and cross-licensing arrangements from E. Bement v. National Harrow, decided in 1902, to the Department of Justice business review letters on the MPEG and DVD patent pools. I examine the factors that the courts identified as pertinent to the antitrust outcome and compare them to the competitive factors identified in the DOJ/FTC Antitrust Guidelines for the Licensing of Intellectual Property. Until recently, the competitive relationship of the patents was not a major determinant of the antitrust outcome in most cases. Instead, the courts have focused on restrictive licensing terms that affect downstream prices. I consider the logic of this approach to evaluating antitrust liability. I also propose an approach to evaluating the antitrust risks of arrangements that combine potentially blocking patents.

Cite this work

No public copy is stored for this record, so only the metadata is cited.

Stored only when both papers are in the corpus — 142 citations exist upstream.