Patent Pooling Behind the Veil of Uncertainty : Antitrust, Competition Policy, and the Vaccine Industry

Innovations typically rely on multiple inventions which, in turn, frequently are subject to multiple patents or patent applications. In such cases, fragmentation of patent ownership introduces obstacles that may significantly hinder innovation. Patent pools constitute one potential mechanism to navigate such obstacles. This article examines how antitrust law may impede patent pools from creating or increasing market power and, thereby, constrain pool usage. Current antitrust law regarding patent pools has been developed almost exclusively in the context of intellectual property settings involving standard-setting organizations. It is argued that this context provides inadequate guidance for settings in which standards are not involved. Using the vaccine industry (particularly the H1N1 and SARS outbreaks) as a motivating example, this article argues that current antitrust treatment of patent pools may be too strict because it does not sufficiently accommodate the type of technological uncertainty, transaction costs, and pricing efficiencies inherent in these distinctive (non-standard-setting) innovation contexts. In particular, this article advocates both greater flexibility and clarity regarding the pooling of potential substitutes and the use of exclusive licensing within the context of pools. Such changes would not only enhance technological innovation but also render the treatment of patent pools and patents acquired through acquisition more consistent