Patentpoolen och risken för konkurrenshämmande verksamhet

Sammanfattning: The market economy sought within the European Union is based on concepts such as competitiveness, welfare, and innovation. Innovation is, in particular, considered to be an important and dynamic part of the market by promoting competition. The patent pool is based on an arrangement between competitors. Anyone who has become acquainted with competition law is well aware of its critical attitude towards cooperation agreements. Pooling agreements illustrate the difficulty of balancing the interests of intellectual property rights and competition law. Competition law is uniformly regulated within the union. When dealing with patent pools, the relevant regulation is Article 101 (1) TFEU, under which cooperation that risks harming competition is prohibited. As patent pools are not covered by the regulations which exempt groups of agreements from the prohibited area, the assessment is made in relation to Article 101. In order to help companies examine their agreements the Commission has developed general guidelines. The guidelines paint a picture of the conditions under which pooling agreements are assumed to harm or promote competition. The assessment takes place in two steps and the analysis includes the agreement on the formation of the pool as well as the licensing out agreement. Several risks can be identified. Firstly, the nature of the pooled patents is crucial. Substitute patents should not be pooled at all, and attention should be paid to pools that contain complementary but non-essential patents. When assessing such pools, the risk of exclusion of third parties is crucial as well as rule of reason analysis where economic benefits are taken into account. Overall, the Commission emphasizes the risk of exclusion of third parties. To reduce the risks, the Commission offers some solution through, for example, the use of an independent expert. On the same track, open participation, non-exclusivity and reasonable as well as fair conditions are highly valued. The thesis describes the legal framework that surrounds patent pools within the union and discusses the risks associated with such arrangements. The lack of actual sources of law has brought shortcomings in the current system to light. In the author’s opinion, there is reason to question the durability in the current regulation.