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Patent Pools: A Review of the Department of Justice Guidelines

By Michael J. Marcin

A patent pool is composed of two or more patent holders who combine their rights to different patents for the purpose of collectively licensing the patents. Patent pools are typically formed when actual or potential competitors in a technology area group patents to complementary aspects of the technology area. Agreements among actual or potential competitors immediately raise the specter of anticompetitive behavior (such as output restrictions, price fixing, and market division) and the antitrust issues corresponding to such behavior.

Patent pools also provide pro-competitive benefits as they allow parties to obtain a single license to all of the technology amassed in the pool. This simplification in obtaining patent rights makes it possible for innovators to focus resources on new innovation in the technology area and provides a vehicle for integrating complementary technologies and reducing barriers to entry in the market by lowering licensing transaction costs, eliminating potential blocking patents, and avoiding costly patent infringement litigation. Thus, benefits are realized by both producers and consumers.

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