As a legal matter, analyses of patents pools by antitrust authorities begin with the proposition that they include only valid patents; antitrust analysis, and patent law, do not countenance the request for royalties, or the enforcement of patent claims, for patents that are not valid. Knowingly including invalid patents can threaten the legal standing of the pool, injuring the pool itself and all the pool licensors, as well as the pool licensees.

As a practical matter – and a very compelling one in a patent pool – licensors would not join, or remain in, a pool in which royalties were being allocated to “bad patents”. This is unassailable for a very simple and obvious reason: any revenue being allocated to “bad patents” takes money away from all of the other licensors (and their “good patents”).

An accurate understanding of how patents are issued and treated in well-managed patent pools, and of the business and legal issues around testing for validity, show that patent pools have struck the right balance and have both the intent and incentive to include only valid patents in their pool.

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