The Essentiality Test for Patent Pools

Antitrust policy for the pooling of patents and other intellectual property rights has undergone a dramatic transformation since the first cases were decided at the beginning of the twentieth century. This transformation generally reflects developments in economics that provide a better understanding of the characteristics of patent pools that warrant antitrust scrutiny. The change, however, was slow, and the U.S. antitrust agencies did not clarify their enforcement principles with respect to patent pools until the publication by the Department of Justice and the Federal Trade Commission of Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition, released in April 2007 (“IP Reportâ€).1