Patent Pools and Other Forms of Aggregation

This paper recalls the EU antitrust provisions relating to patent pools and standard setting, the conclusions of an expert group tasked with the question of identifying what if anything the public sector should do to promote aggregation of patents to foster licencing of patents and reviews some recent academic papers of a theoretical and empirical nature. The broad observation is that patent pools remain pro-competitive and can foster licencing of technology in particular standard essential patents and that the possible drawbacks can be addressed by existing antitrust rules. This leaves open the open the question of how best to foster more participation in pools to facilitate licencing by small players on either side of the market.

By Patrick McCutcheon¹

I. INTRODUCTION

In certain technological areas, particularly those involving key enabling technologies in the ICT sector, ownership of technologies and the patents that read on them has become fragmented. This has created challenges in the technology market for both buyers and sellers or, as is more commonly the case, licensors and licensees. Licensees are faced with the challenge of negotiating licenses with several patent holders. This is particularly the case when the patents read on standards whose implementation inevitably involve the infringement of standard essential patents (“SEPs”) unless these are subject of a license agreement. Patent holders, depending on whether t