Federal Circuit Decision Highlights Possible Antitrust Risks In Patent Pools

Earlier this week, the U.S. Court of Appeals for the Federal Circuit issued a decision that could have significant implications with respect to the formation and operation of patent pools. Princo Corp. v. International Trade Commission, 2007-1386 (Fed. Cir., April 20, 2009). The decision expands on the court's landmark 2005 decision, Philips Corp. v. International Trade Commission, 424 F.3d 1179 (Fed. Cir. 2005), by acknowledging flexibility in the definition of essential patents for purposes of inclusion of patents in a pool. However, the decision also holds that restraints on the ability of pool members to license competing patents outside the pool for separate uses may constitute patent misuse.