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Edited by Josef Drexl
Chapter 6: Patent Pools – Policy and Problems
Hanns Ullrich 1 Introduction Contractual arrangements between two or more holders of a certain stock of patents for the joint exploitation of their exclusive rights vis-à-vis third parties are commonly referred to as patent pools. These may take various forms in accordance with the purpose of the pooling. Generally a distinction is made between arrangements involving centralization of the exploitation, on the one hand, by transfer of control to a joint venture or even an independent enterprise acting as an agent or on its own behalf and, on the other, by way of bundling individually held patents for licensing by one of the partners.1 While these differences are not totally irrelevant to an antitrust analysis, given that the form chosen may reflect the competitive strategy the pooling arrangement is to serve,2 its economically and analytically characteristic feature is that the exploitation of industrial property rights3 relating to the technology of two or more enterprises is made the subject of an agreement on the building of a joint 1 Recent legal literature on the organization of pools is scarce; antitrust literature tends to use a narrow definition by requiring central control over exploitation by either transfer of property or exclusive licensing to a central unit, and thus foregoes one of the essential criteria of antitrust legality, which is free parallel licensing by the partners; see Stumpf, Herbert and M. Groß (2005), Der Lizenzvertrag, Frankfurt am Main: Recht und Wirtschaft, 8th ed., notes 543 et seq.; Schulte, Hans-Jürgen (1971)...
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