Patent pool as a form of collective dominance : case of tying

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http://urn.fi/URN:NBN:fi:hulib-201510133660
Title: Patent pool as a form of collective dominance : case of tying
Author: Abdollah Dehdashti, Sara
Contributor: University of Helsinki, Faculty of Law
Publisher: Helsingin yliopisto
Date: 2015
Language: eng
URI: http://urn.fi/URN:NBN:fi:hulib-201510133660
http://hdl.handle.net/10138/157490
Thesis level: master's thesis
Discipline: Kauppaoikeus
Commercial law
Handelsrätt
Abstract: Discussions over patent pool in the realm of competition law is usually confined to anti-competitive and pro-competitive effects which this arrangement brings into a specific market. However, alongside with such important issues it is needed to look deeply into the essence and nature of patent pool through lens of competition law to scrutinize why and how patent pool essentially can be a threat for competition law. To do so, this work targets one of the most common and serious practice, attaching, tying, nonessential patent to essential patents, which basically pools tend to commit. This research shows how structure of patent pool, considering different forms of patent pool, comply with that of collective dominance, in most cases, and how patent pool can fulfill preconditions of collective dominance set by EU courts through case law. Hence, tying nonessential patents to the essential ones should be usually, not necessarily always, case of Art 102 TFEU than 101 TFEU, as the EU Commission in the relevant guidelines on the application of Art. 101 TFEU mentioned. In fact, the Commission has not yet issued any guideline on application of Art. 102 TFEU regarding technology transfer, and it is not evident if it intends to do so in the future, even though according to this research it seems necessary. However, there is always this possibility that some pools are not at all dominant; accordingly, Art. 101 TFEU and relevant guidelines are enough in this regard. The important point here is that if a pool corresponds with preconditions of dominance, it is most likely collectively dominant even in mega pools in which a single administrative body exists. However, possibility of single dominance in such big pools as a counter claim is also discussed. Using expression “tying” for describing attachment of nonessential patents to essential ones might seem unfamiliar in the EU, however, it is common in the U.S. based on its relevant literatures and case law. In the EU according to the mentioned guidelines, expression “collective bundling” is used as a result of inclusion nonessential patents attached to essential ones, which is not really far from the notion of tying. This work, due to leading role of the U.S. law in terms of patent pool, existing case law and generality of notion of “tying” compared to “collective bundling” preferred to follow the U.S. term. Accordingly, tying, its conditions and forms are discussed, in the second chapter, to show that all forms of it{contractual, mixed bundling and technical integration} can be done in different stages of formation and operation of a pool. Nonetheless, despite possibility of occurring different forms of tying in pools, all of these forms has a single appearance in pools which is tying nonessential patents to essential one. Alongside with such debates which have mostly a theoretical nature, this work also looks at practical situation of patent pool and tying in both EU and U.S. systems, from legal and economic angles. The reason behind entering into U.S. law, despite main focus of this work which is EU law, is richness of relevant literatures and case law in U.S. which undoubtedly helps EU analyses as well. Moreover, recently the EU Commission adopted a new Technology Transfer Block Exemption regulation and its Guidelines in March 2014. According to these new regulation and guidelines some changes have occurred which affect the assessment of pools generally. So, all relevant issues are studied based on this new guideline, with an eye on the previous one.


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