Collaborations Relating to Intellectual Property

Collaboration among intellectual property rights holders is a
common and often beneficial way to make full use of intellectual
property. For example, joint ventures can be used to integrate parties’
complementary technologies, reducing costs and encouraging innovation
and the introduction of new products. As products and services relying
on intellectual property continue to become even more central to the
economy, understanding how the antitrust laws apply to collaborations
relating to intellectual property will become increasingly important. At
the same time, under certain circumstances, competitor collaborations
may have the effect of reducing competition among alternative products
or technologies or may be used as a means to exclude the intellectual
property of others that could have provided equal or more benefits to
consumers. This chapter considers the intersection between
collaborations involving intellectual property rights and the antitrust
laws, including an overview of the applicable agency guidelines and
potential theories of competitive effects.
A. Types of Intellectual Property Collaborations
1. Patent Pools
Patent pools are a common form of collaboration in which owners of
distinct patents jointly license to third parties the right to use their
respective patents.1 Patent pools can have several procompetitive
benefits. They can reduce or eliminate the need for litigation because
disputes over patent rights can be avoided. Patent pools also reduce
transaction costs as licensees only need to enter into a single licensing
agreement for technologies that are jointly owned by many firms. By
creating patent pools and assembling complementary patents, the
1. See, e.g., Standard Oil Co. v. United States, 283 U.S. 163, 169, 51 S. Ct.
421, 423 (1931); Princo Corp. v. ITC, 616 F.3d 1318 (Fed. Cir. 2010);
Carpet Seaming Tape Licensing Corp. v. Best Seam Inc., 694 F.2d 570,
579 (9th Cir. 1982), cert. denied, 464 U.S. 818 (1983).
Joint Ventures
efficient production of goods and services can be facilitated and the
required inputs may be put in the hands of the most efficient and
qualified producers.2 For example, two or more parties may own certain
patents that are not sufficient individually to manufacture a product. The
parties may hold blocking positions whereby one party’s technology is
necessary to use the other. Combining the necessary patents into a single
license can reduce transaction costs for implementers and reduce
concerns over patent hold-up or royalty stacking. Clearing blocking
patents may lead to the faster development of a given technology, and
patent pools provide a way to allow complementary assets to be
organized under a single contract to be licensed to interested parties.
Pooling of intellectual property rights may, however, raise antitrust
concerns. Patent pools can be used to suppress competition among actual
and potential competitors, thereby harming consumers by facilitating
price fixing, allocating markets, and excluding rivals.3 For instance,
patent pools that consist of substitute technologies may harm competition
if it is likely that competition between two substitute patents will be
eliminated if pooled. The Department of Justice (DOJ) and Federal Trade
Commission (FTC) have warned that exclusion from patent pools may
harm competition 4
2. U.S. Dep’t of Justice & U.S. Patent and trademark office, Policy
Statement for Standards-Essential patents Subject to Voluntary F/RAND
Commitments (2013), available at
3. For further discussion of the antitrust implications of patent pools, see
4. U.S. Dep’t of Justic & Fed. Trade Comm’n, Antitrust Guidelin es for the
Licensing of Intellectual Property (January 12, 2017), available at; U.S. Dep’t of Justice
& Fed. Trade Comm’n, Antitrust Enforcement and Intellectual Property
Rights: Promoting Innovation and Competition (2007), available at The European Union
approach to patent pools is broadly in line with the United States
approach. However, the European Commission is said to take a stricter
approach, analyzing pools under the principles set out in the Technology
Transfer Guidelines. See European Comm’n, Guidelines on the
Application of Article 101 of the Treaty on the Functioning of the
European Union to Technology Transfer Agreements, 2014 OJ (C89) 3
(March 28, 2014) available at

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