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→Patent Pools
Patent pools are agreements between patent owners to share, or cross-license, their own patents with one another.[http://www.wipo.int/export/sites/www/ip-competition/en/studies/patent_pools_report.pdf (WIPO)] Generally, patent pools cover mature and complex technologies that require complementary patents to develop compatible products and services. [http://www.wipo.int/export/sites/www/ip-competition/en/studies/patent_pools_report.pdf (WIPO)]. Complementary patents are patents that are must be used together for the development of a specific new product, and therefore, necessitate shared licensing [http://www.wipo.int/export/sites/www/ip-competition/en/studies/patent_pools_report.pdf (WIPO)].
Opponents criticize patent pools for the potential of anti-competitive behavior and collusion, primarily with regards to substitute patents. Substitute or non-essential patents cover competing technologies that can be developed in parallel without risk of infringement [http://www.wipo.int/export/sites/www/ip-competition/en/studies/patent_pools_report.pdf]. Patent pools formed between companies holding substitute patents eliminate competition in that particular technological sector. Certain patent pools have been found to share competetitively competitively sensitive information such as marketing and pricing strategies and R&D findings.[http://www.wipo.int/export/sites/www/ip-competition/en/studies/patent_pools_report.pdf] For example, R&D information and developments could be shared in grant-back provisions, where companies share new or downstream technologies and innovations with members of the pool without additional fees. The Department of Justice and Federal Trade Commission stated that patent pools may create barriers to entry for new firms since the required patents will be inaccessible [http://www.justice.gov/sites/default/files/atr/legacy/2007/07/11/222655.pdf (DOJ)]
In order to address the concerns raised against patent pools, the Department of Justice (DOJ) has taken steps to standardize patent pools in order to prevent violations of antitrust laws. The DOJ requires the following characteristics for a patent pool:
