Joint research and development and patent pools under the antitrust laws of the USA and the competition rules of the European Union

Abstract

Great prosperity is derived from innovation, which in turn prospers in an environment with a large public domain of free knowledge, property rights and unfettered competition. Generally, this was the basic theory for prosperity under the antitrust laws with reference to joint R&D, technology transfer and technology standardization in the US and Europe for many years. This perspective was slowly abandoned in the 1980s and 1990s, replaced by a belief that the greatest wealth was derived from innovators having large resources to perform R&D, the ability to cooperate with competitors and the possibility of jointly protect and exploit newly discovered knowledge through intellectual property rights, technology standardization agreements and joint licensing schemes. The antitrust policies on both sides of the Atlantic have closely and swiftly been adapted to mirror this change of theory. The thesis illustrates this transformation by analyzing the modifications and amendments made to legal acts and guidelines, and the slow shift in the scant case-law detected both under the antitrust laws of the USA and the Competition Rules of the EU. The thesis shows that the prevailing antitrust policies towards R&D collaborations, technology standardization agreements and patent pools are very similar in the US and EU and they both mirror a lenient or even supportive attitude towards collaboration between competitors in reference to creating innovation.