Facilitating Access or Monopoly: Patent Pools at the Interface of Patent and Competition Regimes

In recent times, patent pools are being increasingly projected in policy circles as an important tool for developing countries, particularly, to gain access and cope with the problem of patent thickets in fields as diverse as pharmaceuticals, biotechnology, nanotechnology, clean energy technologies, etc. However, as borne out by the experience of different countries, particularly the United States, patent pools across industries could become anti-competitive in nature and foster 'monopoly of monopolies'. As developing countries like India begin to explore possibilities for the creation of patent pools to facilitate access to patented knowledge and technologies, it will be appropriate to look into the interface of the patent and competition regimes and their implications for patent pooling. This is imperative in order to facilitate setting up of pools which optimize the benefits, while reducing the risks of monopoly and cartelization, which they could give rise to. However, patent pooling is a very recent concept in India, the Indian Competition Act, 2002 is yet to be notified in full and there is dearth of case law on the subject. Hence, much of this discussion can at best be anticipatory and derived from the jurisprudence and case law of developed countries, particularly, the United States which has a long history of both pools and competition law.