Cross-Licensing and Patent Pools: Legal Framework and Practical Issues

M. Howard Morse, Partner, Drinker, Biddle & Reath LLP in Washington, D.C. and co-chair of the firm's Antitrust Practice Group. He is also Chair of the Intellectual Property Committee of the ABA Section of Antitrust Law.

1/01/2005
(Original Publish Date: 2002)

The Department of Justice and Federal Trade Commission have provided much useful guidance to businesses and their counselors setting up and managing patent pools in recent years. We now all look regularly to the 1995 DOJ/FTC Antitrust Guidelines for the Licensing of Intellectual Property, DOJ Business Review Letters on the MPEG and DVD pools, and FTC enforcement actions, most notably In the Matter of Summit Technology, Inc. In light of recent experience, the time may be ripe for further clarification of the Guidelines or other pronouncements to refine policy in particular areas. Moreover, additional enforcement actions may be warranted in certain factual circumstances to protect the public interest in competition. This article summarizes current governing legal principles and then returns to those areas that may warrant further clarification or enforcement action.