Pools will deny patents, crowds out small innovators when big innovators already have every type of patent

The second type of exclusivity concerns the outside developer of technology who wants to include its patents in the pool but is denied. One clearly procompetitive explanation for the pool's refusal to accept an offeror's technology is that the excluded technology is inferior to or no better than technology that the pool already has. There are good reasons for a pool not to accept an inferior substitute technology; namely, it will not make the pool products better and it might raise fears of collusion. If the prospective licensor's technology is simply unwanted by pool members, that also indicates lack of competitive harm. The firms in the pool have a right to make their own technology choices, even when they do so by agreement. Indeed, even a dominant network should not have an obligation to accept a set of licenses to a technology that its members do not want, and no concern about competition arises.

Competitive harm can occur when some pool members already have technology in the pool that competes with the excluded firm's superior technology. In that case the pool can operate as an anticompetitive boycott.23 Assessing the merits of such claims is difficult, because it may require the fact finder to assess the merits of the excluded technology. As a result it is essential to make sure that structural prerequisites are present. For example, an essential element in such a claim would be the existence of an influential pool member or members who own competing technology and have sufficient power to foist an inferior technology on others, perhaps by manipulating the process.24

The third type of exclusivity is the pool that licenses to others only selectively, perhaps only to member-licensors or perhaps to some others. Once again rule of reason treatment is generally appropriate. No general antitrust rule requires a joint venture to share its technology with rivals, particularly in small or specialized ventures whose formation required significant investment. The main reason is to limit free riding on the members’ costly efforts. For example, three firms may agree with each other to cross-license their patents and develop a new product. A fourth stands aside, wishing not to assume the risk of failure. Then, after the venture succeeds, the fourth firms wants to join. An antitrust rule that permitted late joiners would operate as a disincentive to invest in the first place.

Larger, mostly-open pools present a different issue. If the pool controls a network, access to the pool may be essential for operation on the network. Selective exclusion may be a way of disciplining price cutting by refusing pool access. As a result, a practice that selectively denies pool access to price cutters or other aggressive firms could be unlawful. (Hovenkamp, 2012, ¶¶2220-2224). Relatedly, as with exclusivity agreements limiting licensor-membership, a concerted refusal to license to a firm may be unlawful if it amounts to a group boycott that serves to restrain competition in a downstream product market.

The fourth type of exclusivity really concerns market divisions in the pool, and several of these have been prosecuted under the antitrust laws. These are most likely to be a threat when individual pool members dominate different market segments. The pool management might then use field-of-use restrictions on member-licensees to divide the market, thus preventing each member from entering competition with a different member. For example, Hartford-Empire condemned such an arrangement among firms whose pool divided the market for different types of glass bottles.25