Patent Pools-An Effective Instrument for the High Technology Co-operation?

Abstract: Companies share their intellectual property with potential competitors in many different ways, including patent pooling. A patent pool is an agreement between two or more patent owners to license one or more of their patents to one another or to third parties. In Europe the Commission used the term patent pool as the bringing together of the patents of two companies, which makes it available for use for joint benefit. Through the use of patent pools, patent owners can agree to give up their respective exclusive rights in their patents and contribute them to a pool, thereby making the patents available under one package or joint license to each other and to other licensees. This kind of agreement can be very efficient where multiple intellectual property licensees are necessary to develop or use a particular technology, like for example the third generation mobile telephone. Nevertheless, patent pools can also have negative effects due to the fact that they tend to reduce or eliminate innovation. Patent pools are very often divided into three categories, this classification depending on the inter-relations of the patents in the pool. The first category covers competing patents, the second category patents relating to the same technology (complementary patents) and the third category blocking patents. The distinction between the three categories is of a great importance, as pooling of complementary and blocking patents may be justified on the grounds that litigation is avoided and the technology used can be improved. Pooling competing patents can lead to antitrust problems since their combination can eliminate competition and enable the fixing of prices. However it is not always easy to distinguish between the three categories: sometimes a patent pool can contain features from all three categories. Over the years there has always been a tension between intellectual property rights and antitrust law. One could argue that, over the course of the last century, many courts' view' have been changing from defending the goals of antitrust law to rather upholding those of intellectual property law. With the 1995 Antitrust Guidelines for Licensing of Intellectual Property (IP guidelines) and approval of several patent pools the U.S. authorities have clearly taken a more positive attitude towards patent pooling than they had in earlier decades. But when we examine the European point of view (with its small number of cases) and the opinions of the Commission, one can clearly see that the European Union has actually avoided discussing patent pools. The only statement of the Commission is that patent pools can be both pro-competitive and anti-competitive. One of the most important questions remains open and that is: could patent pools be seen as an effective and lawful instrument for high technology co-operation?