The Rise and Limits of Self-Regulation
New Horizons in Competition Law and Economics series
Chapter 5: Patent pools
When the US Justice Department decided to focus on patent pools at the end of the 1990s, it signalled the start of the latest peak of interest in them. Now, more than a decade later, the interest in patent pools, or, more broadly, collaborative schemes for licensing intellectual property rights, is strong and developing. The EU Commission has monitored and followed the US development of patent pools. Perhaps more accurately, the Commission has not shown its standpoint with reference to the antitrust treatment of patent pools as publicly as the US antitrust agencies; or, at least, it has avoided revealing its own standpoint until the US antitrust agencies have published their opinion. Notwithstanding this, the development of the European telecommunications industry and its need for workable Europe-wide and global standards and intellectual property rights management has motivated the EU Commission to take an in-depth look at patent pools and the interaction between patent pools and standardization agreements. In addition, in comparison to the US antitrust agencies, the EU Commission is, perhaps, taking a different standpoint on some issues. It considers, for example, in contrast to the US standard, that IP arrangements and patent pools are similar collaborative creatures. How patent pools are regulated under antitrust law in the United States and in the European Union is the topic of this chapter. The level and threshold of legal scrutiny, i.e. the regulation, of patent pools under US and EU antitrust laws will be analysed.
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