Part V Patent Hold-Up and Misuse, 10 Targeted Patent Aggregation

Subject(s):

European Union — Copyright — Licensing — Rights — Technology transfer agreements — United States

This chapter addresses a different form of offensive patent use—targeted patent acquisitions. Two forms of targeted patent aggregation are examined. The first involves the purchase of intellectual property rights (IPRs) by a firm in a product market to exclude competitors or raise its rivals’ costs. The second concerns non-practising entities (NPEs) that do not operate in any good market and thus cannot eliminate competition there. The question in the latter case is whether harm to an upstream licensing market can itself violate antitrust law. In both cases, ‘targeted’ means that the firm acquires a patent to attack an already-marketed technology. The aim of such an asset purchase may be to restrict competition in a manner that would not have occurred but for the acquisition, or simply to take advantage of lock-in to command a larger royalty.