Capacity of EU competition law to promote patent pools: A comparative study

Abstract

Patent pools have proved to offer significant efficiency to both licensors and licensees as they provide a one-stop-shop for a patents package, reduce transaction costs, and improve access to Standard Essential Patents (SEPs). The presented study examines whether, how and to what extend the EU competition law can promote patent pooling as a recommended mechanism for licensing SEPs. To reach this purpose, a brief review of pooling history shows how antitrust policy evolved with regard to pool establishment and operation. Patent pools in the modern era are connected to standardised technologies, and display tendency to product-based technologies rather than standard-based pooling. As a research methodology, a comparative analysis between the US and the EU antitrust laws shows that, although the procedural frameworks in the US contain only soft law, pooling there has undergone a more stable and straightforward treatment thanks to the publicly available Business Review Letters (BRLs) than in the EU which lacks a thorough assessment template. The presented substantive analysis illustrates how the two systems assess pooling's potential anti-competitive effects. Despite several similarities in their evaluation, the US generally shows a slightly more lenient approach toward patent pools. Amongst the differences, the strict EU approach regarding inclusion of non-essential/substitute patents into a pool is criticised. Each paper section is concluded by a takeaway that summarises and discusses the outcomes.