This article is a part of the Agricultural and Biotech Mergers Symposium symposium.
Shubha Ghosh is Crandall Melvin Professor of Law and Director of the Technology Commercialization Law Program at Syracuse University College of Law
How should patents be taken into consideration in merger analysis? When does the combining of patent portfolios lead to anticompetitive concerns? Two principles should guide these inquiries. First, as the Supreme Court held in its 2006 decision Independent Ink, ownership of a patent does not confer market power. This ruling came in the context of a tying claim, but it is generalizable. While ownership of a patent can provide advantages in the market, such as access to techniques that are more effective than what is available to a competitor or the ability to keep competitors from making desirable differentiations in existing products, ownership of a patent or patent portfolio does not per se confer market power. Competitors might have equally strong and broad patent portfolios. The power to limit price competition is possibly counterweighted by competition over technology and product quality.
A second principle about patents and markets, however, bespeaks more caution in antitrust analysis. Patents can create information problems while at the same time potentially resolving some externality problems arising from knowledge spillovers. Information problems arise because patents are not well-defined property rights with clear boundaries. While patents are granted to novel, nonobvious, useful, and concrete inventions (as opposed to abstract, disembodied ideas), it is far from clear when a patented invention is actually nonobvious. Patent rights extend to several possible embodiments of a novel, useful, and nonobvious conception. While in theory this problem could be solved by limiting patent rights to narrow embodiments, the net result would be increased uncertainty through patent thickets and divided ownership. Inventions do not come in readily discernible units or engineered metes and bounds (despite the rhetoric).
The information problems created by patents do not create traditional market power in the sense of having some control over the price charged to consumers, but they do impose costs on competitors that can give a patent owner some control over market entry and the market conditions confronting consumers. The Court’s perhaps sanguine decoupling of patents and market power in its 2006 decision has some valence in a market setting where patent rights are somewhat equally distributed among competitors. In such a setting, each firm faces the same uncertainties that arise from patents. However, if patent ownership is imbalanced among firms, competition authorities need to act with caution. The challenge is identifying an unbalanced patent position in the marketplace.
Mergers among patent-owning firms invite antitrust scrutiny for these reasons. Metrics of patent ownership focusing solely on the quantity of patents owned, adjusting for the number of claims, can offer a snapshot of ownership distribution. But patent numbers need to be connected to the costs of operating the firm. Patents can lower a firm’s costs, create a niche for a particular differentiated product, and give a firm a head start in the next generation of technologies. Mergers that lead to an increased concentration of patent ownership may raise eyebrows, but those that lead to significant increase in costs to competitors and create potential impediments to market entry require a response from competition authorities. This response could be a blocking of the merger or perhaps more practically, in most instances, a divestment of the patent portfolio through requirements of licensing. This last approach is particularly appropriate where the technologies at issue are analogous to standard essential patents in the standard setting with FRAND context.
Claims of synergies should, in many instances, be met with skepticism when the patent portfolios of the merging companies are combined. While the technologies may be complementary, yielding benefits that go beyond those arising from a cross-licensing arrangement, the integration of portfolios may serve to raise costs for potential rivals in the marketplace. These barriers to entry may arise even in the case of vertical integration when the firms internalize contracting costs for technology transfer through ownership. Vertical integration of patent portfolios may raise costs for rivals both at the manufacturing and the distribution levels.
These ideas are set forth as propositions to be tested, but also general policy guidance for merger review involving companies with substantial patent portfolios. The ChemChina-Syngenta merger perhaps opens up global markets, but may likely impose barriers for companies in the agriculture market. The Bayer-Monsanto and Dow-DuPont mergers have questionable synergies. Even if potential synergies, these projected benefits need to be weighed against the very identifiable sources for market foreclosure. While patents may not create market power per se, according to the Supreme Court, the potential for mischief should not be underestimated.