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Callahan, Matthew W.; Schultz, Jason M. --- "Is patent reform via private ordering anticompetitive? An analysis of open patent agreements" [2017] ELECD 529; in Contreras, L. Jorge; Jacob, Meredith (eds), "Patent Pledges" (Edward Elgar Publishing, 2017) 151

Book Title: Patent Pledges

Editor(s): Contreras, L. Jorge; Jacob, Meredith

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781785362484

Section: Chapter 8

Section Title: Is patent reform via private ordering anticompetitive? An analysis of open patent agreements

Author(s): Callahan, Matthew W.; Schultz, Jason M.

Number of pages: 17

Abstract/Description:

Private-ordering patent reform strategies are growing in number and popularity out of twinned desires to decrease patent litigation and promote cross-platform innovation. However, much like patent pools and other attempts at collective IP problem solving, questions of competition impact and antitrust policy arise. This chapter considers one such strategy—open patent agreements (OPAs)—and asks how it might perform under antitrust scrutiny. In the end, we conclude that OPAs should survive such scrutiny because they generate significant procompetitive effects, such as non-discriminatory access to knowledge and incentives for follow-on innovation, that more than outweigh the potential risks to competition.