Patent Assertion Entities (“PAEs”) are playing a growing role in the United States, but also in Europe. Their activities are controversial in that while they may be a source of efficiencies, they may also create anticompetitive harm. Given the growing trend of operating companies transferring patents to PAEs in order to increase their licensing revenues, the risks of anticompetitive harm created by PAE activities must be taken seriously. When analysing the impact of PAE activities on competition, a distinction must be drawn between “pure” PAEs, which acquire patents from a variety of sources and generate revenues by asserting them, and “hybrid” PAEs, which acquire patents from operating companies and maintain a relationship with these companies post-acquisition. While pure PAEs create risks of exploitation, hybrid PAEs create exclusionary concerns as such PAEs may be used by operating companies to harm their rivals on downstream product markets. These exclusionary concerns are particularly serious when the operating company retains a significant degree of control over the activities of the PAE following the transfer of the patents. As there is currently no EU competition case-law on the activities of PAEs, this paper attempts to show through hypotheticals that depending on the circumstances of each case, privateering may lead to exclusion.

中文翻译：

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专利主张实体和欧盟竞争法

专利主张实体（“ PAE”）在美国以及欧洲都扮演着越来越重要的角色。他们的活动引起争议，因为它们虽然可以提高效率，但也可能造成反竞争伤害。鉴于运营公司将专利转让给PAE以增加其许可收入的增长趋势，必须认真考虑PAE活动所造成的反竞争损害的风险。在分析PAE活动对竞争的影响时，必须对“纯” PAE和“混合” PAE进行区分，“纯” PAE从各种来源获取专利，并通过宣称这些专利来产生收益，“混合” PAE从运营公司获取专利并进行维护收购后与这些公司的关系。纯PAE会产生剥削风险，混合型PAE产生了排他性问题，因为运营公司可能会使用此类PAE损害下游产品市场上的竞争对手。当运营公司在专利转让后仍对PAE的活动保持相当程度的控制时，这些排他性问题就尤其严重。由于目前尚无关于PAE活动的欧盟竞争判例法，本文试图通过假设表明，根据每种情况的不同，私有化可能导致排斥。