Antitrust, Patent Pools, And The Management Of Uncertainty

Joshua A Newberg, Assistant Professor, Robert H. Smith School of Business, University of Maryland

1/01/2005
(Original Publish Date: 2000)

This article critically evaluates the antitrust case law that has been applied to patent pooling arrangements -- a specific type of combination that is often employed by high-technology firms. Section I briefly reviews the major antitrust policy issues that arise in the analysis of patent pools. Section II analyzes four of the leading United States Supreme Court cases applying antitrust law to pooling arrangements. In Section III, two high-technology patent pooling arrangements recently reviewed by the Justice Department and the Federal Trade Commission -- the MPEG-2 and Summit/VISX patent pools -- are analyzed under antitrust doctrine derived from Supreme Court cases and in light of current policy concerns. Consideration of the complex facts of these two recent cases highlights serious weaknesses in the established antitrust analysis of patent pools and suggests an agenda for future doctrinal development.