Law Antitrust - Instructor: Dwight Drake Patent Pooling What is patent pooling? When is patent pooling anticompetitive? Can others be excluded from pooled arrangement without violating antitrust? What was the patent pool in the Toshiba DVD proposal? Did the DOJ use traditional antitrust analysis in the Toshiba DVD matter? What is significance or “essential” and “non-essential” patents in the pool? Why did DOJ conclude in Toshiba matter that pool would not have anticompetitive effects in potential markets? Are innovation incentives moving forward relevant to patent pooling evaluation?

Law Antitrust - Instructor: Dwight Drake 1995 Guidelines for Licensing Intellectual Property 1. What is purpose of guidelines? 2. What are three primary general principles incorporated in guidelines? 3. To what extent does standard antitrust analysis apply to IP? What are exceptions or special factors to consider? 4. Do the Guidelines apply to international licensing arrangements? 5. Is market power presumed with IP? 6. If an IP confers market power, does it suggest antitrust violation or impose a duty to license under the guidelines? 7. What is blocking? 8. What are the potential pro-competitive benefits of licensing?

Law Antitrust - Instructor: Dwight Drake 1995 Guidelines for Licensing Intellectual Property 9. What are the most suspect constraints in IP licensing agreements? 10. What is the difference in “goods markets” and “technology markets”? When are they used in IP licensing/antitrust analysis? 11. Does the per se doctrine have any application in IP licensing analysis? How about truncated quick-look analysis? Rule of Reason? 12. What is the significance of substitutes in a “technology market” analysis? How are they identified? 13. Are all licensing arrangement between horizontal competitors deemed anticompetitive under guidelines? 14. What are the two types of exclusive IP licensing arrangements? Are exclusive licensing arrangements more suspect? Why?

Law Antitrust - Instructor: Dwight Drake 1995 Guidelines for Licensing Intellectual Property 15. When can a non-exclusive IP license have the same effect as an exclusive IP license? 16. What is the antitrust “Safety Zone”? What are the criteria? What is “facially anticompetitive”? What is impact of “goods” and “technology” markets? 17. Is a IP license that falls outside the “Safety Zone” in antitrust trouble? 18. Is resale price maintenance in an IP license permissible? 19. Do all IP agreements that bundle or package licenses violate antitrust. What are the factors that most impact the analysis under the Guidelines? 20. What are the most important factors in assessing exclusive IP licenses?

Law Antitrust - Instructor: Dwight Drake 1995 Guidelines for Licensing Intellectual Property 21. What is the Guideline criteria for evaluating cross-license of pooling arrangements? What factors impact the analysis of such arrangements that are exclusionary? 22. What are Grantbacks? Are they always anticompetitive? When do they create an antitrust concern?

Law Antitrust - Instructor: Dwight Drake United States v. Brown University (3 rd Cir. 1993) Basic Facts: Ivy league school, MIT and other northeast colleges engaged in Overlap program to agree on amount of financial aid to be given a student admitted to more than one school. Took financial aid out of the decision by fixing the price. All schools but MIT settled with DOJ. At MIT trial, Dist. Ct. used short truncated analysis to conclude that agreement interfered with free market competition and MIT did not meet heavy burden of showing pro-competitive justification. Was there any question agreement was price fixing? Did agreement have any output effects? Any effect on price of MIT education? What were MIT’s alleged justifications for price fixing? What was issue on appeal?