"... antitrust law can facilitate or impede the production of innovation. The misapplication of the per se rule to pooling agreements resolving blocking relationships is the paradigmatic example of the latter, while the rule of reason analysisin the BMI case exemplifies the former. ... The tendency to wish away uncertainty by imposing orderly classifications upon conduct and business relationships is understandable, but ultimately antithetical to the task of analysis. For it is only by confronting the full implications of uncertainty that we can hope to develop methodologies for its management."
Joshua A. Newberg, ANTITRUST, PATENT POOLS, AND THEMANAGEMENT OF UNCERTAINTY, 3 ATLANTIC L. J. 1 (2000), p. 30.
I haven't had time to go over this point of view yet, but it would be important as a possible sophistication of the rule of reason in high-tech markets.