This paper reviews the antitrust treatment of patent-pooling and cross-licensing arrangements from E. Bement & Sons v. National Harrow Co., decided in 1902, to the recent 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.
To receive updates from STLR on upcoming publications and events, please email email@example.com with "subscribe" in the subject line.
- Steve B on Investing in America’s Future Through Innovation
- Monday Morning JETLawg | JETLaw: Vanderbilt Journal of Entertainment & Technology Law on Investing in America’s Future Through Innovation
- Brian Kahin on Investing in America’s Future Through Innovation
- Mark Hughes on Copyright Vigilantism
- Copyright in the Digital Age Symposium « Digital Media Law Seminar SP13 on 2013 Symposium
- Stanford 2013 Technology and Law Review’s Symposium « Digital Media Law Seminar SP13 on 2013 Symposium
- Cloud Computing Contracts and geolocation « Data-Center.BlogNotions - Thoughts from Industry Experts on Negotiating Cloud Contracts