L22 Pooling agreements
Pooling involves creating a basket of IP (especially patents) which members of the pool contribute IP to and take IP from by means of cross-licensing arrangements
Pooling of IP can be anti-competitive.
In the EC whether it is allowable will depend on the scope of the pool, the extent of the economic power of the IP and the relationship between the IP1.
Pooling of overlapping patents may however provide benefits to all. (See also Note 1=>)
A cross-licence agreement is a simple two party pool
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Cross Licensing
A and B produce innovations a1 and b1.
C produces more advanced innovation c1.
A and B both produce improvements a2 and b2.
- A needs a licence from B to b2 to produce a2.
- B needs a licence from A to a2 to produce a2.
- A & B cross-licence a2 and b2
Both A and B can now produce products involving a2.
By Cross-licensing both A and B are better off relative to C and customers can now buy the more advanced a2.
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Package Licences
A package licence involves a licensor who owns a large range of related patents and other IP offering licenses to use any or all of the technology covered by the IPRs concerned for a flat fee which is not broken down into individual payments for each IPR.
Such practices are relatively common in high patent density fields such as computers and electronics. Such packages are not automatically exempt from EC competition law and must be notified to the EC and clearance applied for in order to gain exemption.
1 See L43 : Patent Pools cannot benefit from the exemptions from EC competition law in EC Regulation 772/2004. However, those involved in pools and cross-licences which improve the production of goods or promote technical progress may be able to notify the EC and gain exemption. Collaborative R&D agreements are dealt with under EC Regulation 2659/2000 .
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