It facilitates collaboration and innovation by allowing multiple parties to share their patents for a common goal, promoting fair access to essential inventions
Patent pooling relates to an agreement between two or more patent owners to aggregate one or more of their patents for cross-licensing to each other or third parties. Historical road map indicates that patent pools come into the picture when the technology is multifaceted & complex and it needs to put together different composites of the technology landscape to attain required and superior technical solutions. Generally, these patent pools cover mature technologies concerning time and are yet to be fully developed.
Apart from technological aspects, the motivation for forming a patent pool by two competitors may be to facilitate the partaking and transfer of patented technology and, ultimately, making possible innovation (technological solution) without causing an eruption of IP-related legal battle.
Pools make life easier for licensors and licensees by dramatically reducing the cost and time needed to invest in the licensing process. They are a useful tool for bringing technology to market more quickly, efficiently and fairly, and generally at a better overall price for licensees. Sometimes the dealings and inner workings of pools may seem obscure. However, compared to the often murky battles of individual companies over SEP licensing - think Qualcomm and Apple, for example - they are beacons of transparency.
Patent pools have a significant economic aspect as far as inventing around is concerned; by sharing patented technology, companies save the time and money required for inventing around the technology. It is worth mentioning that efforts of inventing around never guarantee results fulfilling the technological gap.
The creation of a patent pool is always a better plan of action instead of creating reasons for patent lawsuits for an industry having multiple players holding patent rights with overlapping scopes. The wireless and telecommunication industry is such a technological zone which is very progressive & dynamic and resulting in multiple patents relating to technologies needing the support of other neighbouring technologies (of overlapping scope) to get the intended results. In other words, this sector gives scope to many complementary patents which are used together to produce a specific output and are not substitutes for each other.
One may think that such a scenario invites a vast scope of patent pooling in this technological zone, however, on the other hand, some Industry experts like Bowman Heiden, deputy director at the Centre for Intellectual Property in Sweden and a well-known expert on standardisation and patent pools, explains why pools in the telecommunications sector have been unsuccessful so far. “Large licensors in wireless have always preferred to go it alone in mobile telecom,” he says. “In that sector, the concentration among the implementers of the standard, your prospective licensees, is currently very high. In the handset market, if you license Apple, Samsung and Huawei, you have a big chunk of the potential total licensing income covered. Big licensors in this space, such as Ericsson, Qualcomm and Nokia, prefer to handle these implementers on their own.
However, it should not be concluded that patent pooling is not trending in the telecommunication sector; recently ASUS and IP Bridge have joined Via Licensing’s 4G Multi-Generational Patent Pool, and now the tally of a total number of licensors has reached twenty-one.
One way to achieve better access to new medicines is patent pools, which allow third parties to acquire non-exclusive licenses for the intellectual property needed to develop products. While patent pools have existed for several decades in other fields of technology, they are a relatively new concept in public health, where they have been applied to address some of the access challenges in low and middle-income countries.
To improve access to antiretroviral treatment in low and middle-income countries, the United established the Medicines Patent Pool in 2010 as the first public health patent pool. A good example of improvement in access to medicines is treatment for human immunodeficiency virus (HIV) infection. Later, the patent pool’s mandate was expanded to treatments for tuberculosis and hepatitis C.
The Medicines Patent Pool (MPP) is a United Nations-backed public health organisation working to increase access to and facilitate the development of, life-saving medicines for low- and middle-income countries. It encourages to pool of intellectual property to encourage generic manufacture and the development of new formulations.
The experience of the MPP in dealing with access to HIV drugs has provided a concrete example of how patent pooling can contribute to addressing some of the innovation and access challenges relating to health technologies. Public health patent pools represent an innovative type of partnership that can be used to manage privately held IP rights in the public interest. In March 2020, the MPP expanded its scope to include any health technology that contributes to the global response to Covid-19.
Although there is a general concord on the positive impact of patent pools and it is well accepted that they are efficiency-enhancing, however, there may be certain instances where the patent pools may lead to possible competition rules violations. For instance, in Summit vs. VISX, two US firms engaged in a patent pool and developed their technology for performing laser eye surgery. Both companies successfully applied for individual patent protection. This type of technology was not available on the market. The Federal Trade Commission (FTC, one of the US antitrust enforcement agencies) concluded that the patents were substitutes rather than complements. Therefore, the FTC found that the patent pool restricted competition that would have existed otherwise in the absence of the patent pool. It is worth mentioning that substitute patents address the same issue by using alternative technologies, hence non-blocking.
Patent pooling has been considered a potent solution in the field of technologies since the Sewing Machine Combination of 1856, however, in the recent past it has gained recognition as a talisman to provide access to essential medicines to low and middle-income countries.
Although patent pooling may cause possible competition law violations, the positive aspects are more than a few negatives. There will be a rising curve of patent pooling in the future because of its inherent characteristics of time & cost efficiency, resource management and curb on IP disputes.
(The author is Deputy Controller of Patents and Designs at the Patent Office, Delhi; views are personal)
