Patent Pools, Licensing and Antitrust Enforcement: Current Trends and Political Tension
Patent pools and patent portfolio licensing have 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. 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 who force them to sue because they know they will ultimately only have to pay what would have been a reasonable negotiated licensing rate even if they are later found to have infringed after years of litigation.
The seminal case on point seemed to be FTC v. Qualcomm, where the Ninth Circuit overruled the district court and determined that Qualcomm’s licensing efforts did not violate antitrust laws. The FTC did not appeal the decision to the Supreme Court. The failure of the FTC to appeal coupled with Avanci receiving a favorable business review letter (BRL) from the Department of Justice seemed to put the issue to rest: any alleged abuse does not rise to the level of an antitrust violation. But now some in the Biden Administration are rumored to believe it is folly to think that a patent and/or patent licensing program can constitute an antitrust violation, which raises the specter that the new Administration will shift the balance between implementers and patent owners once again, at least from an executive perspective.
Will the shifting currents create a tension between the Biden administration trying to broaden Antitrust enforcement of patent licensing efforts, a Congress that is aggressively considering new laws to expand antitrust to capture the business models of Facebook, Google, Amazon, and others, and the conservative judges that took over the appellate courts during the Trump Administration? That is the wide-ranging discussion this panel will have regarding the future of patent pools, patent licensing and antitrust enforcement during the Biden administration.