Aggregation and Dissemination Issues in Patent Pools

In this forthcoming book chapter, I classify antitrust issues concerning patent pools as either dissemination issues or aggregation issues, and suggest that this classification provides a simple rubric under which to organize the antitrust analysis of patent pools. Dissemination issues focus on the terms under which third parties can take licenses from the pool; the question is whether those terms and related pool licensing practices are anticompetitive. Aggregation issues focus on the fact of combining patents within a pool; the question here is whether combining particular patents in a pooling arrangement adversely impacts competition. In the first part of the chapter, I briefly survey cases that have featured patent pooling dissemination issues. Those cases have dominated the patent pooling jurisprudence, and the associated commentary. But those cases have surprisingly little to tell us today. I then turn to aggregation issues. I argue that aggregation issues are more important for the modern patent pooling regulation, but less tractable, and less developed in the case law. To approach aggregation issues in patent pools, antitrust decisionmakers should borrow the framework from tying cases. Within that framework, decisionmakers might employ the related doctrines of blocking patents and essential patents. However, the antitrust approach to those doctrines has been markedly superficial, as I demonstrate by examining some of the patent claims that were at issue in selected important cases. Despite the increasing attention being given to these doctrines, I remain skeptical that they can be developed into successful policy instruments in the regulation of patent pools