Abstract
The current proliferation of intellectual property rights is hindering the smooth functioning of high-technology markets. When too many patents cover a single technology, licensees incur considerable transaction costs, as well as litigation risks. Patent pools constitute an effective method to address the inefficiencies associated with patent thickets, by aggregating all the patents necessary to realize a single technology. On both sides of the Atlantic, antitrust regulation provides a detailed legal framework on patent pools, focusing on the analysis of the competitive relationship among the patents combined. In this regard, the EU Commission and the US Department of Justice similarly require that patent holders include only essential patents in the pool portfolio. Several factors, however, shows the artificiality of the essentiality-based approach. For this reason, the Court of Appeals for the Federal Circuit recently departed from such formalistic models and valorized the role of pools in creating certainty in fragmented technology markets. EU competition law should inaugurate a new antitrust policy towards patent pools, so that the diffusion of new technology and sequential innovation processes would be promoted. A closer look at the current regulation may reveal alternative criteria, which would allow the incorporation of “important” improvements in the pool.
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