A new era has begun in antitrust regulation of patent pools. With the issuance of the 1995 Antitrust Guidelines for the Licensing of Intellectual Property and the 1997 Department of Justice approval of the MPEG LA patent pool, federal antitrust authorities have espoused a more permissive attitude toward patent pools and cross-licensing arrangements than in recent decades. Procompetitive benefits undoubtedly justify the formation of patent pools in certain contexts, but serious anticompetitive risks are also present, particularly in standard-dependent industries. This Note argues that the Department of Justice and the Federal Trade Commission should not adopt a per se rule of legality for the pooling of blocking patents, and that these agencies must carefully delineate the permissible scope of broader pools.

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