Power and Governance in Patent Pools

The recent influx of patent pools, research consortia, and similar cooperative groups led by companies at the vanguard of American innovation has raised a pressing question: How does collective action influence the incentive to innovate? This question hinges on how patent pools are internally governed — a topic that has not been deeply examined by legal scholars. Through an original study of fifty-two private agreements, this Article pulls back the veil on patent licensing collectives to examine whether such organizations are designed to encourage long-term innovation. This study draws on collective patent license agreements spanning the years 1856 to 2013 and obtained from congressional records, regional repositories of the national archives, Freedom of Information Act (“FOIA”) requests directed to the Antitrust Division of the United States Department of Justice (“DOJ”), the Wisconsin State Historical Society, the New York State Library in Albany, and in several instances, directly from patent licensing organizations. These contracts document nearly two centuries of scientific and industrial progress, from nineteenth century steel-making to modern-day genetic research, and they describe in vivid detail the degree to which members of patent pools can influence their compensation