encourages licensees to develop and market the licensed technology (or specialized applications of that technology), increases licensors’ incentives to develop or refine the licensed technology, or otherwise increases competition and enhances output in a relevant market.[1]
5.5 Cross-Licensing and Pooling Arrangements
Cross-licensing and pooling arrangements are agreements of two or more owners of different items of intellectual property to license one another or third parties. These arrangements may provide procompetitive benefits by integrating complementary technologies, reducing transaction costs, clearing blocking positions, and avoiding costly infringement litigation. By promoting the dissemination of technology, cross-licensing and pooling arrangements are often procompetitive.
Cross-licensing and pooling arrangements can have anticompetitive effects in certain circumstances. For example, collective price or output restraints in pooling arrangements, such as the joint marketing of pooled intellectual property rights with collective price setting or coordinated output restrictions, may be deemed unlawful if they do not contribute to an efficiency-enhancing integration of economic activity among the participants.[2] When cross-licensing or pooling arrangements are mechanisms to accomplish naked price-fixing or market division, they are subject to challenge under the per se rule.[3]
Settlements involving the cross-licensing of intellectual property rights can be an efficient means to avoid litigation and, in general, courts favor such settlements. When such cross-licensing involves horizontal competitors, however, the Agencies will consider whether the effect of the settlement is to diminish competition among entities that would have been actual or potential competitors in a relevant market in the absence of the cross-license. In the absence of offsetting efficiencies, such settlements may be challenged as unlawful restraints of trade.[4]
- ↑ See section 4.2; Example 7.
- ↑ Compare NCAA v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85, 114-20 (1984) (holding unlawful output restriction on college football broadcasting because it was not reasonably related to any purported justification), with Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 23-24 (1979) (finding blanket license for music copyrights not per se illegal because the cooperative price was necessary to the creation of a new product).
- ↑ See United States v. New Wrinkle, Inc., 342 U.S. 371 (1952) (price-fixing through pooling).
- ↑ Cf. United States v. Singer Mfg. Co., 374 U.S. 174 (1963) (finding antitrust conspiracy where cross-license agreement was part of broader combination to exclude competitors).
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