ICLE Comments on EU TTBER and Technology Transfer Guidelines
I. Introduction
The International Center for Law & Economics (ICLE) thanks the European Commission for the opportunity to comment to this public consultation on the draft revised Technology Transfer Block Exemption Regulation (TTBER) and accompanying Technology Transfer Guidelines. ICLE is a nonprofit, nonpartisan research centre devoted to the study of law and economics, and our scholars have written extensively on intellectual property and competition policy. We appreciate the Commission’s efforts to refine the TTBER framework, and we offer our perspective on two key aspects of the Draft Guidelines that raise serious concerns.
A. Safe Harbour for Licensing-Negotiation Groups (LNGs)
The proposal in Section 4.5 of the Draft Guidelines to introduce a safe harbour for licensing-negotiation groups would likely do more harm than good. While intended to address perceived “patent holdup” in standard-essential-patent (SEP) licensing, this policy is based on a flawed premise and risks serious unintended consequences.
There is little empirical evidence of systemic holdup problems in SEP licensing. Studies have indeed found no indication that SEP holders are extracting supra-competitive royalties or undermining technology adoption under the status quo.[1] By contrast, the problem of “patent holdout” (implementers collectively delaying or denying fair payment for SEPs) is well-documented and poses a significant threat to innovation.[2] Indeed, creating an antitrust safe harbour for groups of implementers to jointly negotiate licenses could facilitate collective holdout.
LNGs effectively act as buyers’ cartels, empowering implementers to coordinate against patent holders’ interests. Even with the draft’s proposed safeguards (e.g., open access, transparency, and a cap on jointly negotiated fees), an LNG safe harbour would tilt the negotiating balance disproportionately toward implementers. In turn, this would undermine SEP holders’ incentives to contribute technology to standards and could invite further collusive behaviour among implementers. Notably, a senior U.S. Justice Department (DOJ) official recently criticized the Commission’s support for an automotive LNG as “unfortunate” and difficult to reconcile with sound competition-law principles, warning that such arrangements would likely be treated as a per se unlawful buyers’ cartel in the United States.[3] Endorsing LNGs in the Technology Transfer Guidelines—via the Guidelines’ safe harbour—would therefore create more problems than it solves.
B. Essentiality Checks in Patent Pools
The essentiality checks mandated by the Guidelines in the context of patent pools also raise significant issues. Properly structured patent pools can generate important pro-competitive benefits by reducing transaction costs and bundling complementary patents for one-stop licensing. The existing Technology Transfer Guidelines already provide a safe harbour for pools that include only essential and complementary technologies and abide by fair, reasonable, and non-discriminatory (FRAND) licensing terms.[4] The draft revision, however, goes further by encouraging greater transparency about essentiality verification—specifically, requiring disclosure of any methodology used to assess essentiality and the results of such assessments.[5]
While transparency is generally welcome, imposing additional essentiality-check expectations would burden innovators and pool administrators with costly and redundant procedures. Many patent pools already employ independent experts to evaluate whether submitted patents are truly essential to the relevant standard. Requiring pools to formalize and disclose these checks offers scant added benefit, while increasing administrative costs.
Importantly, any “essentiality certification” obtained through a pool’s process remains nonbinding; implementers remain free to challenge a patent’s essentiality or validity in court or to refuse a license. The net effect is that formal essentiality checks may do little to streamline or improve licensing outcomes. Instead, they could introduce new procedural hurdles and opportunities for opportunistic delay. If implementers know that every patent must undergo an extra verification step, they may use the process to stall negotiations—disputing essentiality findings or insisting on additional reviews as a tactical matter. This would simply prolong licensing discussions and defer royalty payments, to the detriment of patent holders who have already invested in R&D.
In short, the soft mandate on essentiality checks is, at best, superfluous and at worst a catalyst for holdout behaviour.
C. Undermining Europe’s Innovation Ecosystem
In sum, the draft TTBER Guidelines could inadvertently undermine Europe’s innovation ecosystem and fuel transatlantic tensions. The LNG safe harbour and the expanded essentiality-check provisions echo elements of prior SEP policy initiatives that proved controversial and were ultimately abandoned. By shifting the balance of SEP licensing further in favour of implementers, these proposals risk reducing incentives for patent-driven innovation in Europe.
We therefore urge the Commission to reconsider these aspects of the draft. A more cautious approach—one that refrains from exempting implementer cartels and avoids imposing duplicative patent-checking obligations—would better serve the twin goals of promoting technology transfer and maintaining a vibrant climate for innovation.
II. The Proposed Safe Harbour for Licensing-Negotiation Groups (LNGs)
Section 4.5 of the Draft Guidelines introduces guidance on licensing-negotiation groups (LNGs), which are arrangements whereby a group of potential licensees jointly negotiates license terms with a technology supplier (patent holder or pool). This marks the first time that EU competition guidelines would recognize a safe harbour for such collective negotiations. The Commission’s draft describes possible pro-competitive benefits of LNGs—such as reduced transaction costs, more informed negotiations, or overcoming a “first-mover” disadvantage among implementers.[6]
To qualify for the safe harbour, an LNG would need to satisfy several conditions, including open participation, transparency of rules, a narrow scope limited to joint negotiation, restrictions on information exchange, voluntary membership for both sides, no foreclosure of outside deals, and a cap on aggregate licensing fees (no more than 10% of the product price).[7] In essence, the Commission is proposing to treat LNGs as analogous to patent pools (on the buyers’ side, rather than sellers’ side) by providing a “soft” exemption from Article 101 TFEU, provided these criteria are met.
But this exemption is based on flawed premises. The underlying idea is that implementers face a collective action problem in SEP-licensing negotiations that leads to—the risk that SEP holders demand excessive royalties once implementers are locked into a holdup standard.[8] The Draft Guidelines appear to assume that empowering implementers to negotiate jointly will counteract SEP holders’ supposed bargaining advantage. This premise is unsupported by the evidence.
Both historical experience and empirical research indicate that fears of widespread patent holdup are overstated.[9] Standard-reliant industries (such as wireless communications) have flourished under the current SEP-licensing system, suggesting that the royalty stack and holdup “problem” has not materialized in a systemic way.[10] Notably, a comprehensive study commissioned by the Commission in 2023 found no discernible evidence that patent owners are systematically overcharging implementers or that FRAND disputes are undermining innovation and standard adoption.[11] On the contrary, the study concluded that SEP-licensing frictions have not led to reduced contributions to standards by patent holders, nor a shift by implementers to avoid standardized technologies.[12]
In short, the empirical record does not substantiate the notion of a market failure caused by patent holdup. It would be a dubious policy course to upend long standing licensing norms based on a theory that lacks real-world support.
But crucially, the Draft Guidelines give insufficient weight to the opposite concern of patent “holdout”. Under holdout strategies, implementers strategically avoid or delay taking licenses for SEPs, thereby devaluing those patents and shifting bargaining leverage against innovators.[13] Empowering implementers to form an LNG could exacerbate the risk of holdout. When competitors band together to negotiate, they may collectively agree to stand firm against low royalty offers or prolong negotiations, knowing that the patent holder’s enforcement options (such as injunctions) are constrained once negotiations are ongoing.
Indeed, even supporters of the LNG concept have acknowledged that such groups could be used to coordinate delaying tactics. For example, commentators from the Max Planck Institute observed that, if members of an LNG reserve the ability to pursue bilateral deals after joint talks, they might exploit the joint negotiation to gain information and then drag out individual negotiations, increasing the risk of delay and holdout.[14]
More broadly, competition scholars recognize that collective-purchasing arrangements (which an LNG effectively is) carry inherent dangers. Indeed, they create monopsony power on the buying side and can facilitate explicit or tacit collusion among buyers. An LNG of implementers could enable its members—many of whom may be direct competitors in downstream product markets—to share sensitive information and coordinate licensing strategies, all under the cloak of a nominally pro-competitive joint activity. In other words, LNGs may provide perfect cover for a buyers’ cartel. From an antitrust perspective, a buyers’ cartel is arguably just as pernicious as a sellers’ cartel: it distorts the price (royalty) by artificially suppressing it, which can lead to under-compensation of innovators and underinvestment in future technologies.[15]
Given this, U.S. antitrust authorities have taken a firm view against such collective buyer behaviour. In the context of music licensing, for example, the DOJ filed a statement in litigation explaining that strategies to negotiate rates collectively could amount to per se illegal buyers’ cartels.[16] And as mentioned, a high-ranking DOJ official publicly characterized the Commission’s support for an automotive LNG as “unfortunate”, highlighting a divergence between the EU’s approach and U.S. competition-law norms.[17]
This transatlantic disapproval underscores the gravity of the collusion concerns at stake. The upshot is that collusive behaviour by buyers can stifle competition and harm innovation incentives.
The Commission appears to view LNGs as the mirror image of patent pools, but this analogy is misleading.[18] Patent pools involve cooperation among patent holders who contribute complementary technologies and license them as a package. Because pools can integrate complementary patents and reduce transaction costs, they often produce efficiency gains and are typically pro-competitive (especially when limited to essential patents and governed by FRAND licensing).[19]
By contrast, LNGs are a coalition of technology implementers (patent licensees) coordinating their purchasing of licenses. The competitive dynamics are very different. In a pool, the risk of patent holders engaging in a holdup is mitigated by the pool’s structure (only essential patents, FRAND commitment, etc.), and any attempts to collude on prices above FRAND are checked by the availability of bilateral licensing and the oversight of competition authorities.[20] In an LNG, however, the implementers share the goal of securing lower royalties, and their coordination could simply serve to depress the price below the competitive level.[21]
The Draft Guidelines attempt to import some pool-like safeguards to LNGs (open access, limits on information exchange, etc.), but these may not be sufficient or even apt.[22] For instance, the draft safe harbour would forbid an LNG from engaging in a collective boycott or from penalizing members who enter individual deals. Such conditions, while well-meaning, could prove difficult to police in practice. Any LNG inherently has some degree of group pressure that may discourage members from “defecting” and negotiating separate deals.
Moreover, unlike a patent pool, which is constrained by the inclusion of only essential patents (ensuring the pool’s package has unique value), an LNG has no analogous built-in need for the group’s product; the implementers could always negotiate individually. Thus, an LNG’s chief purpose is to consolidate bargaining power against sellers, which is not a pro-competitive efficiency but an exercise of collective monopsony. In short, the analogy to patent pools does not justify a broad exemption for LNGs, as the economic effects and incentive structures are entirely different.
Another issue is how LNGs would interface with the existing FRAND-licensing framework, particularly as developed under the Huawei v. ZTE line of cases in Europe.[23] The European Court of Justice’s Huawei decision established a balanced negotiation protocol for SEP disputes, defining steps for both SEP holders and implementers to follow in good faith.[24] That framework, which remains the law in the EU, envisions bilateral negotiation and requires that implementers manifest their willingness to take a FRAND license as a condition to avoid injunctions.
Introducing LNGs into this equation raises several problematic legal questions. If implementers negotiate as a group, what does it mean to be a “willing licensee” under Huawei? Can an entire LNG be deemed willing (or unwilling) based on the actions of the group? There is a concern that an implementer could hide behind the group’s collective stance and later claim willingness without ever having engaged individually, as Huawei contemplates. This would make it de facto difficult to impossible for inventors to ever obtain injunctions.
The Draft Guidelines rightly note that any LNG must operate in compliance with Huawei, but it is unclear how that compliance would be ensured in practice. The presence of an LNG could complicate the timeline and exchanges envisioned by Huawei, potentially delaying offers and counteroffers as the group deliberates. In effect, the LNG mechanism might undermine the delicate balance Huawei struck between patent rights and competition law. This is especially troubling, given that the Commission’s now-withdrawn SEP Regulation proposal sought to displace the Huawei framework with new dispute-resolution mechanisms. Many stakeholders—including ICLE’s scholars—opposed this change.[25] Reviving elements of that approach via an LNG safe harbour could be seen as indirectly achieving what the abandoned regulation could not, risking legal uncertainty and renewed controversy in SEP licensing.
In short, absent clear evidence that the benefits outweigh the risks, it is premature to endorse LNGs in guidance. Scholars and industry insiders have already voiced deep reservations about the LNG concept.[26] International alignment is also an issue. Moving ahead unilaterally with an LNG safe harbour could strain relations with key trading partners and enforcement agencies that view such coordination as anticompetitive. It would be ironic and counterproductive if a policy ostensibly aimed at promoting efficient licensing ended up sparking transatlantic frictions and discouraging technology investment in Europe.
To avoid these outcomes, it would be appropriate to withdraw or substantially narrow Section 4.5 in the Draft Guidelines. The existing tools of competition law, applied on a fact-specific basis, are fully capable of assessing any joint negotiation initiatives in the market without the need for a broad safe harbour that would likely be misused.
III. Patent Pools and Essentiality Verification
“Patent pools”—that is, consortia of patent holders who offer combined licenses—can have important pro-competitive benefits. They can reduce transaction costs, prevent royalty stacking, and accelerate the dissemination of technologies—particularly for complex standards that require licensing numerous SEPs.[27] The current Guidelines recognize this by providing a safe harbour for the creation and operation of patent pools, so long as certain conditions are met.[28] Key conditions include that participation in the pool is open to all interested patent holders, that the pool aggregates only essential and complementary patents (with independent experts typically ensuring only truly essential patents are included), that pooled patents are licensed to all comers on FRAND terms, and that members remain free to develop or license competing technology.[29]
These principles have worked well over decades. We have seen several successful pools formed in the telecom, consumer-electronics, and automotive sectors, providing a one-stop licensing solution and helping implementers (especially smaller firms) access critical technologies efficiently. Importantly, the competitive safeguards in pools—FRAND commitments and the focus on complementary (non-substitute) patents—mean that properly structured pools rarely threaten competition. Indeed, the Commission’s own evaluation studies have noted the generally positive impact of pools.[30]
Against this backdrop, the revised Draft Guidelines make several adjustments to the pool safe-harbour criteria aimed at increasing transparency and preventing royalty duplication. In particular, the Draft Guidelines add new recommended requirements that pool administrators: (1) disclose the list of patents (technology rights) included in the pool, (2) disclose the methodology used to verify the essentiality of those patents (as well as the results of any essentiality assessments), and (3) ensure that licensees are not charged twice for the same patent (for example, if they already have a license via a bilateral agreement, they should not pay again through the pool for that patent).[31]
On their face, these suggestions appear designed to address concerns raised by some implementers about transparency in pools. For instance, implementers have sometimes voiced worries about pools including nonessential patents or “double-dipping” by patent owners who license both inside and outside the pool.[32] While the goals of transparency and avoiding double payments are legitimate, there is a risk the essentiality-check requirement may do more harm than good in practice.
First, imposing additional essentiality-verification requirements will increase the costs of forming and maintaining patent pools. Conducting a rigorous essentiality check is an expensive and time-consuming process. It typically involves hiring technical experts to review each patent and determine whether it is actually essential to the standard in question. This expense ultimately must be borne by patent holders (who fund the pool’s operations) and is passed on indirectly in the royalty rates. If the Commission’s guidelines create an expectation that every pool should perform and publish such checks, some patent holders may be deterred from pooling altogether—especially for standards where the number of declared SEPs is very large.
As a result, such assessments must be conducted in a reasonable and practical manner to ensure transparency and accuracy, while avoiding excessive costs that could overburden the system and discourage companies from participating in the standard-setting process. In short, the challenge for policymakers is to design an essentiality-assessment mechanism that is both efficient and effective.[33]
The marginal benefit of formally verifying each patent’s essentiality is doubtful when weighed against these costs. Indeed, many of the most successful pools already include mechanisms to ensure largely essential patents without formalistic checks on every single patent. For example, pools often rely on the patent holders’ own incentives: since non-essential patents have little licensing value (no one needs to license what they don’t infringe), patent owners have limited incentive to contribute blatantly nonessential patents to a pool.
Moreover, if a pool did license nonessential patents, implementers could simply refuse to take a license for those or negotiate a lower rate. There are, therefore, market pressures to keep pools focused on truly essential assets. In practice, some pools do go the extra mile and employ independent evaluators to vet patents (Sisvel and others have done so in certain cases), but that is a choice best left to the pool and its members, who can judge if the benefit outweighs the cost in their context.[34] Mandating or strongly encouraging it across the board, as the draft suggests, imposes a redundant burden.
It is telling that, in other contexts, the Commission has acknowledged how low the average essentiality rate is among declared SEPs; it has been estimate that just 25–40% of declared SEPs are truly essential to a given standard.[35] This means a substantial number of patents would have to be reviewed and found nonessential, a resource-intensive exercise that might not materially improve the licensing environment. The industry already understands that not all declared patents are essential; what matters is that essential ones are available on fair terms. Requiring pools to publicly document this could be seen as solving a transparency issue of which market participants are already aware and that they manage via negotiations.
Second, and perhaps more importantly, an essentiality determination made outside the context of litigation has limited legal or practical value to implementers. Even if a pool announced that its patents have been independently checked and deemed essential, this would not preclude an implementer from later challenging a patent’s essentiality (or validity or infringement) in court. The pool’s determination is not binding on anyone; it is simply a nonauthoritative opinion. Given the significant costs associated with essentiality checks, it would be both unfair and inefficient to render these assessments meaningless by allowing certain implementers to exploit the process merely to delay negotiations or evade royalty payments.[36]
Implementers who are inclined to be sceptical of pool patents will not be meaningfully swayed by the knowledge that an evaluator found them essential; such implementers can still force patent owners to prove essentiality and infringement in court if they choose to litigate. Conversely, if a pool’s evaluator were to label certain patents as not essential, those patents presumably would be left out of the pool license. The patent owner would, however, remain free to assert them outside the pool (if, for instance, they believe the evaluator was mistaken or if the patent is essential to a different implementation not considered).
In short, an essentiality check does not resolve disputes. At best, it provides information that sophisticated parties often already possess or can obtain. Implementers who negotiate licenses (whether through pools or bilaterally) typically have their own internal or external technical analyses of which patents likely read on the standard and their products. The presence of a pool’s essentiality report is unlikely to change those assessments significantly. It might even lead to confusion or false confidence. If an implementer sees a pool’s list of “essential” patents, it may incorrectly assume those are the only patents it needs—when, in fact, other patents (perhaps not in the pool) could also be asserted as essential. Thus, the marginal utility of the proposed transparency measure is questionable.
Third, and most critically from a competition standpoint, making essentiality checks a prominent feature of pooling arrangements could introduce new procedural opportunities for holdout by implementers. For example, the mere availability of a pending essentiality evaluation could be cited as a reason to postpone license negotiations or payments; “let’s wait and see what the evaluator says” becomes a convenient excuse not to sign a deal. If the guidelines strongly encourage pools to perform essentiality checks, implementers may likewise insist on waiting for those results, or challenge the adequacy of the pool’s methodology, as a tactic to defer taking a license.
Additionally, by publishing essentiality findings, pools could inadvertently invite litigation or disputes over those findings. For instance, if a pool’s evaluator deems a particular patent essential, while an implementer disagrees, the implementer might use the discrepancy to argue the pool license is overbroad or to challenge the pool’s fees (claiming they are paying for a nonessential patent). Alternatively, if a patent is deemed nonessential and excluded from the pool, a patent holder might feel aggrieved and choose to assert it separately, leading to parallel negotiations and undermining the pool’s one-stop-shop advantage. In either scenario, the essentiality check can become another locus of contention, fragmenting negotiations instead of streamlining them.
This concern echoes what many stakeholders—including ICLE—noted in response to the Commission’s earlier SEP regulatory initiative: that creating elaborate procedural mechanisms (essentiality assessments, conciliations, etc.) risked becoming a tool for delaying tactics and strategic behaviour by unwilling licensees.[37] It is therefore imperative that competition guidelines not inadvertently endorse similar mechanisms in the context of pools, which have to date functioned relatively well under simpler rules.
Finally, the push for additional essentiality transparency in pools appears to be a solution in search of a problem. The Commission’s own support study for the TTBER evaluation did not identify major competitive problems with existing pool practices.[38] On the contrary, it acknowledged pools’ pro-competitive effects and largely endorsed the current safe-harbour framework.[39] There is no indication of systemic abuse whereby pools are sneakily including large numbers of nonessential patents in order to overcharge implementers. If anything, implementers’ main complaints about pools have been that not all SEP holders join them (leaving some gaps) or that pool royalties still need to be negotiated to cover all patents.[40]
Neither of these issues is solved by forcing more transparency about essentiality. Indeed, adding new burdens could deter the formation of new pools or the expansion of existing ones (if patent owners fear more bureaucracy or potential liability around essentiality representations). That outcome would harm implementers by depriving them of efficient licensing platforms. In short, absent concrete evidence of harm from the status quo, regulators should not saddle pooling arrangements with additional procedural requirements that could upset the delicate balance that makes pools viable.
IV. Conclusion
In short, several of the changes to the TTBER guidelines risk producing adverse outcomes. Creating a safe harbour for licensee cartels (LNGs) would empower coordination that is likely to suppress royalties below competitive levels, discourage patent investment, and invite conflict with our trading partners’ competition authorities. Likewise, inserting cumbersome essentiality-check recommendations into the patent-pool framework would impose new costs and delays that could deter efficient licensing arrangements and be co-opted by implementers intent on holding out. Rather than improving the licensing landscape, these changes may well tilt it in favour of free riding and disputes.
These initiatives may also exacerbate transatlantic tensions over SEP policy. Indeed, recent commentary from U.S. officials suggests a deep misalignment with the EU on issues like LNGs. Further, U.S. officials have underlined that implementer holdout poses a greater threat to innovation than innovator holdup, particularly because patents are not self-executing rights and a neutral court determination is always required before an injunction can be granted.[41] Moreover, the DOJ has recently emphasized that the mere possession of SEPs cannot give rise to a presumption of market power, nor is antitrust law meant to serve as an over-the-counter remedy for ordinary contract or tort disputes.[42] A prudent course would be to avoid enshrining contentious new principles in the competition guidelines without broader international consensus or clear evidence.
In conclusion, it would be prudent to reconsider the LNG safe harbour and the essentiality-check provisions in the final TTBER Guidelines. The Commission’s overarching mission is to foster innovation, competition, and consumer welfare in the internal market. These goals are best served by a policy that ensures technology creators can obtain a fair return on their investments and that implementers can access new technologies on reasonable terms. A balanced approach—one that rejects collective-holdout tactics and avoids overengineering the patent-licensing process—will encourage both innovation and dissemination.
We believe the existing TTBER framework, with minimal tweaks, largely strikes that balance. Changes that disproportionately advantage one side (implementers) at the expense of the other (innovators) risk undoing years of progress and cooperation in Europe’s standardization ecosystem.
[1] Alexander Galetovic, Stephen Haber, & Ross Levine, An Empirical Examination of Patent Holdup, 11 J. Competition L. & Econ. 549 (2015).
[2] Bowman Heiden & Justus Baron, The Economic Impact of Patent Holdout, 38 Harv. J.L. & Tech. 638 (2024); Kirti Gupta & Urška Petrov?i?, Evidence of Systematic “Patent Holdout”, 38 Berkeley Tech. L.J. 575 (2023).
[3] Khushita Vasant, EU Guidance on Carmakers’ SEP Licensing “Unfortunate,” US DOJ’s Kallay Says, MLex (10 October 2025), https://www.mlex.com/mlex/amp/articles/2398760.
[4] Communication from the Commission — Guidelines on the Application of Article 101 of the Treaty on the Functioning of the European Union to Technology Transfer Agreements, 2014 O.J. (C 89) 3, § 4.4.1. (hereafter: “the Guidelines”).
[5] Communication from the Commission—Approval of the Content of a Draft for a Commission Regulation on the Application of Article 101(3) of the Treaty on the Functioning of the European Union to Categories of Technology Transfer Agreements and a Draft for Commission Guidelines on the Application of Article 101 of the Treaty to Technology Transfer Agreements, 2025 O.J. (C/2025/5024) (16 September 2025)¶ 285(c). (hereafter: “Draft Guidelines”).
[6] Id. ¶ 300.
[7] Id. ¶ 326.
[8] Mark A. Lemley & Carl Shapiro, Patent Holdup and Royalty Stacking, 85 Tex. L. Rev. 1991 (2007).
[9] Heiden & Baron, supra note 2; Gupta & Petrov?i? supra note 2.
[10] Galetovic et al., supra note 1.
[11] Justus Baron, Pere Arqué-Castells, Amandine Léonard, Tim Pohlmann, & Eric Sergheraert, Empirical Assessment of Potential Challenges in SEP Licensing (European Commission 2023).
[12] Id. at 185.
[13] Kalyan Dasgupta & David J. Teece, Protecting Innovation in the Mobile Wireless Ecosystem: Understanding and Addressing “Hold-Out”, 38 Berkeley Tech. L.J. 313 (2023).
[14] Josef Drexl, Beatriz Conde Gallego, & Daria Kim, Position Statement of the Max Planck Institute for Innovation and Competition of 25 April 2025 in the Framework of the Revision of the Technology Transfer Block Exemption Regulation and the Accompanying Guidelines (Max Planck Inst. for Innovation & Competition Research Paper No. 25-10, 2025).
[15] For a more complete discussion of the policy issues that arise applying antitrust to monopsony market position, see, e.g., Geoffrey A. Manne, Brian Albrecht, & Dirk Auer, Labor Monopsony and Antitrust Enforcement: A Distorting Mirror, 74 DePaul L. Rev. 1119 (2025).
[16] Statement of Interest of the United States, Global Music Rights, LLC v. Radio Music License Comm., Inc., No. 2:16-cv-09051-TJH-AS (C.D. Cal. Dec. 5, 2019) (ECF No. 111).
[17] Vasant, supra note 3.
[18] Giuseppe Colangelo, Licensing Negotiation Groups: The New Antitrust Kid on the SEPs Block (2025), https://ssrn.com/abstract=5582774.
[19] Josh Lerner & Jean Tirole, Efficient Patent Pools, 94 Am. Econ. Rev. 691 (2004).
[20] Daniel F. Spulber, Antitrust and Innovation Competition, 11 J. Antitrust Enf’t 5 (2023).
[21] Ruud Peters, Igor Nikolic, & Bowman Heiden, Designing SEP Licensing Negotiation Groups to Reduce Patent Holdout in 5G/IoT Markets, in 5G and Beyond: Intellectual Property and Competition Policy in the Internet of Things 155 (Jonathan M. Barnett & Sean M. O’Connor, eds., 2023).
[22] Draft Guidelines, supra note 5, ¶ 326.
[23] Case C-170/13, Huawei Techs. Co. v. ZTE Corp., ECLI:EU:C:2015:477 (2015).
[24] Id. ¶ 71.
[25] Robin Jacob & Igor Nikolic, Comments Regarding the Draft Regulation on Standard Essential Patents, Int’l Ctr. for Law & Econ. (28 July 2023), available at https://laweconcenter.org/wp-content/uploads/2023/07/ICLE-Comments-to-the-SEP-Regulation.pdf.
[26] See, e.g., Igor Nikolic, Licensing Negotiation Groups for SEPs—Collusive Technology Buyers Arrangements: Pitfalls and Reasonable Alternatives, 56 Les Nouvelles 350 (Dec. 2021); Peters, Nikolic, & Heiden, supra note 21.
[27] Lerner & Tirole, supra note 19.
[28] Guidelines, supra note 4, ¶ 261.
[29] Id.
[30] See, e.g., Baron et al., supra note 11.
[31] Draft Guidelines, supra note 5, ¶ 285.
[32] European Commission, Support Study for the Evaluation of the Technology Transfer Block Exemption Regulation: Final Report 215–30 (Publications Office of the European Union 2024).
[33] Giuseppe Colangelo, Finding an Efficiency-Oriented Approach to Scrutinize the Essentiality of SEPs: A Survey, 18 J. Intell. Prop. L. & Prac. 502 (2023).
[34] Gustav Brismark, Mattia Fogliacco, Carter Eltzroth, Matteo Sabattini, & Richard Vary, Overview of SEPs, FRAND Licensing and Patent Pools, 58 Les Nouvelles 57 (Mar. 2023).
[35] Group of Experts on Licensing & Valuation of Standard Essential Patents (SEPs Expert Group), Contribution to the Debate on SEPs (Jan. 2021), https://ec.europa.eu/docsroom/documents/45217.
[36] Colangelo, supra note 33.
[37] Jacob & Nikolic, supra note 25.
[38] European Commission, supra note 32.
[39] Id.
[40] Id.
[41] Dina Kallay, Keynote at Concurrences Dinner in New York (U.S. Justice Dep’t, 2025), https://www.justice.gov/opa/speech/daag-dina-kallay-delivers-keynote-concurrences-dinner-new-york.
[42] Statement of Interest of the United States, Disney Enters., Inc. v. InterDigital, Inc., No. 1:25-cv-00996-MN (D. Del. 6 October 2025), https://www.justice.gov/atr/media/1416101/dl.