Patent Pools, RAND Commitments, and the Problematics of Price Discrimination

This is a book chapter forthcoming in Working Within the Boundaries of Intellectual Property Law (Harry First, Rochelle Dreyfuss, and Diane Zimmerman, eds., Oxford University Press), which will collect papers from the NYU Engelberg Center's 2007 conference at La Pietra, Florence. The paper highlights the complexities and potential abuses that arise when patent pools are used to implement standards created by standard setting organizations (SSOs). It summarizes the antitrust fixes that have been proposed by the patentees and generally approved by the antitrust agencies. The paper then explores the meaning of the chief antitrust fix - the patentees' commitment to license their patents on reasonable and nondiscriminatory (RAND) terms. The paper concludes by arguing that at least three conditions must be satisified for RAND commitments to be effective fixes: (1) understanding the RAND commitment as a contract enforceable by third parties; (2) placing the burden of justifying the proferred licensing terms on the patent pool; and (3) allowing for meaningful judicial review of licensing decisions by private arbitrators.