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

Daniel A. Crane

University of Michigan Law School

April 1, 2008

Cardozo Legal Studies Research Paper No. 232

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.

Number of Pages in PDF File: 27

Keywords: antitrust, intellectual property, patents, price discrimination, licensing

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Date posted: April 18, 2008 ; Last revised: December 28, 2013

Suggested Citation

Crane, Daniel A., Patent Pools, RAND Commitments, and the Problematics of Price Discrimination (April 1, 2008). Cardozo Legal Studies Research Paper No. 232. Available at SSRN: https://ssrn.com/abstract=1120071 or http://dx.doi.org/10.2139/ssrn.1120071

Contact Information

Daniel A. Crane (Contact Author)
University of Michigan Law School ( email )
625 South State Street
Ann Arbor, MI 48109-1215
United States
734-615-2622 (Phone)

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