The assessment of patent pools under antitrust law, a comparative analysis
Author
Summary, in English
This thesis identifies the differences in the antitrust regulations concerning patent pooling within the EU and the U.S. Patent pooling enables firms to jointly licence their patents as a package, gathering patents that are necessary in order to produce a certain product. Patent pooling allows faster development at lower costs, since firms can attain all necessary patents through one single license. Patent pools also serve the purpose of unlocking blocking positions among patent holders; such blockages can otherwise hinder further development due to the risk of infringing others’ patents.
The European Commission and the U.S antitrust authorities have established their positions concerning patents and licensing of such rights in written guidelines. The approach on patent pooling held by the European Commission is, however, in several ways different from the approach held by U.S antitrust authorities (the FTC and the DoJ).
In February next year the current TTBER (block exemption regulation concerning technology transfer agreements) and the Guidelines will expire, the Commission therefore has drafted a new regulation as well as new Guidelines. Patent pooling has up until now, and will continuously be, excluded from block exemption, making the TTBER non-applicable on pooling arrangements. The approach on patent pools held by the Commission is therefore clarified only in the Guidelines, identifying the anticompetitive issues of patent pooling and establishing as a general rule that inclusion of substitutable patents in pools is regarded as anti-competitive. The general rule and the Commissions approach on substitute patents is the most prominent difference to the approach held by the FC and the DoJ. The drafted Guidelines are in some ways more lenient, but the approach held by the U.S antitrust authorities is still in many ways different, but the general rule still applies. This difference is also identified and questioned by the American Bar Association.
In my analysis I will, based on the above-identified differences, suggest an effects based assessment of inclusion of substitute patents, with the intention of benefiting patent pooling within the European Union.
The European Commission and the U.S antitrust authorities have established their positions concerning patents and licensing of such rights in written guidelines. The approach on patent pooling held by the European Commission is, however, in several ways different from the approach held by U.S antitrust authorities (the FTC and the DoJ).
In February next year the current TTBER (block exemption regulation concerning technology transfer agreements) and the Guidelines will expire, the Commission therefore has drafted a new regulation as well as new Guidelines. Patent pooling has up until now, and will continuously be, excluded from block exemption, making the TTBER non-applicable on pooling arrangements. The approach on patent pools held by the Commission is therefore clarified only in the Guidelines, identifying the anticompetitive issues of patent pooling and establishing as a general rule that inclusion of substitutable patents in pools is regarded as anti-competitive. The general rule and the Commissions approach on substitute patents is the most prominent difference to the approach held by the FC and the DoJ. The drafted Guidelines are in some ways more lenient, but the approach held by the U.S antitrust authorities is still in many ways different, but the general rule still applies. This difference is also identified and questioned by the American Bar Association.
In my analysis I will, based on the above-identified differences, suggest an effects based assessment of inclusion of substitute patents, with the intention of benefiting patent pooling within the European Union.
Department/s
Publishing year
2013
Language
English
Full text
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Document type
Student publication for professional degree (Master's level)
Topic
- Law and Political Science
Keywords
- Immaterialrätt
- Konkurrensrätt
- Patentpooler
- Patent pools
Supervisor
- Hans Henrik Lidgard (professor)