Patent pools collect the exclusive rights associated with a specific technology, often complex technologies such as those associated with a standard set by a Standard Developing Organization (SDO). Patent pools are particularly desirable in the standard essential patent (SEP) context because implementation of a standard requires numerous core and complementary patents in order to provide an efficient technical solution as envisioned by the SDO.
Patent portfolio licensing has long been a critical part of the way innovators and implementers organize their affairs, trade rights and assets, and stay out of court. Over much of the last generation, however, an imbalance has taken hold that has forced innovators and implementers to increasingly turn to the judicial system to settle disputes rather than coming to arms length negotiated resolutions.
Although a useful tool for the efficient acquisition of broad rights related to a standard, patent pools have been the subject of both legal and an economic debate over the years. On the one hand, patent pools can and often do have many positive effects on competition and innovation by allowing for the efficient acquisition of patent rights necessary to develop complex technologies while keeping transaction costs low. On the other hand, patent pools have been criticized as providing an opportunity for anti-competitive cooperation among competitors.
In recent years it has become in vogue once again to raise various antitrust theories against innovators who seek to license their portfolios or join patent pools, during a time which innovators charge there has been a refusal to deal by implementers.