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Patent Assertion Entities And Eu Competition Law

Author

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  • Damien Geradin

Abstract

Patent assertion entities (PAEs) are playing an increasingly active role in Europe. Their activities are controversial in that although they may be a source of efficiencies, they may also create anticompetitive harm. Given the growing trend of operating companies transferring patents to PAEs to increase their licensing revenues, the risks of anticompetitive harm created by PAE activities must be taken seriously. When analyzing the impact of PAE activities on competition, a distinction must be drawn between “pure” PAEs, which acquire patents from a variety of sources and generate revenues by asserting them, and “hybrid” PAEs, which acquire patents from operating companies and maintain a relationship with these companies postacquisition. Although pure PAEs create risks of exploitation, hybrid PAEs create exclusionary concerns as such PAEs may be used by operating companies to harm their rivals on downstream product markets. These exclusionary concerns are particularly serious when the operating company retains a significant degree of control over the PAE’s activities following the transfer of the patents. As there is currently no EU competition case-law on the activities of PAEs, this article attempts to show through hypotheticals that depending on the circumstances of each case, privateering may lead to exclusion.JEL: K21, K41, L24, L40.

Suggested Citation

  • Damien Geradin, 2019. "Patent Assertion Entities And Eu Competition Law," Journal of Competition Law and Economics, Oxford University Press, vol. 15(2-3), pages 204-236.
  • Handle: RePEc:oup:jcomle:v:15:y:2019:i:2-3:p:204-236.
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    File URL: http://hdl.handle.net/10.1093/joclec/nhz012
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    Cited by:

    1. Klapper, Felix B. & Siemering, Christian, 2024. "Effects of patent privateering on settlements and R&D under sequential market entry," Information Economics and Policy, Elsevier, vol. 66(C).

    More about this item

    JEL classification:

    • K21 - Law and Economics - - Regulation and Business Law - - - Antitrust Law
    • K41 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - Litigation Process
    • L24 - Industrial Organization - - Firm Objectives, Organization, and Behavior - - - Contracting Out; Joint Ventures
    • L40 - Industrial Organization - - Antitrust Issues and Policies - - - General

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