This Article proceeds as follows. First, it provides an overview of necessary background principles to understand the interaction between patent pools, commitments to license SEPs on terms that are fair, reasonable, and nondiscriminatory (FRAND), and competition law. Second, it explores how competition law principles traditionally have been applied to SEP patent pools and explores business review letters issued by the U.S. Department of Justice (DOJ) addressing patent pools. Third, it critically examines how some of the assumptions underlying the procompetitive nature of patent pools no longer are true in today’s SEP assertion environment. Fourth, it assesses how the anticompetitive risks of certain SEP pools likely eclipse their alleged procompetitive justifications. Finally, this Article concludes by providing specific recommendations to restore SEP patent pools to a position where an appropriate balance is struck between competition risks and benefits.
John ". Jurata, Jr & Emily N. Luken,
Glory Days: Do the Anticompetitive Risks of Standards-Essential Patent Pools Outweigh Their Procompetitive Benefits?,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol58/iss2/4