Feature Articles

Antitrust for Patent Pools: A Century of Policy Evolution

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.

Full Article available here (PDF).

TrackBack

TrackBack URL for this entry:
https://www.stanford.edu/group/stlr/cgi-bin/mt/mt-tb.cgi/83

Post a comment

Verification: (ignore if you are going to preview before posting)