Wednesday, February 28, 2018

Contreras on Holdup, Global SEP Disputes

As I noted on Monday, Professor Jorge Contreras and I, along with Christopher Thomas, will be speaking today on FRAND Litigation After TCL v. Ericsson as part of the IP Chat Channel webinar series.  I hope some of you will be able to tune in.  In addition, here are a couple of Professor Contreras's recent papers that might be of interest to readers of this blog:

1.  The first is titled Much Ado About Hold-UpHere is a link to the paper, and here is the abstract:
The policy debate surrounding patent hold-up in markets for standardized products is now well into its second decade with no end in sight. Fundamental questions including the definition of hold-up, whether it exists in the marketplace, and what impact it has on innovation, continue to bedevil scholars, policy makers and industry. Yet it is not clear that this debate needs to continue. Patent hold-up is a pattern of market behavior, not a legally-cognizable wrong. Whether it is commonplace or rare is largely irrelevant to liability in any given case. To the extent that hold-up behavior constitutes an abuse of market power, with resulting harms to competition, longstanding doctrines of antitrust and competition law exist to sanction it. To the extent that hold-up impedes the efficient operation of standard-setting processes, SDOs can, and have, adopted internal procedures, including disclosure and licensing requirements, to curtail that behavior. Thus, the ongoing hunt for empirical evidence of systemic patent hold-up in standardized product markets, or a lack thereof, seems a fruitless academic exercise. The absence of systemic hold-up actually tells us little about individual firm behavior that can and should be sanctioned by the law, and it may thus be time to close the debate over the
systemic prevalence of this form of behavior.
2.  Professor Contreras also has posted a paper titled The Global Standards Wars: Patent and Competition Disputes in North America, Europe and Asia, which is forthcoming in the Keio Journal of Law, Politics and Sociology.  Here is a link, and here is the abstract:
Over the past decade there has been an increasing number of disputes concerning the enforcement and licensing of patents covering technical standards. These disputes have taken on a global character and often involve litigation in North America, Europe and Asia. And while many of the parties are the same in actions around the world, courts and governmental agencies in different jurisdictions have begun to develop distinctive approaches to some of these issues. Thus, while areas of convergence exist, national laws differ on important issues including the availability of injunctive relief for FRAND-encumbered SEPs, the appropriate method for calculating FRAND royalties, the competition implications of violating a FRAND commitment, and the contours of the FRAND non-discrimination obligation. Thus, at least until greater international harmonization is achieved, firms doing business globally must remain particularly attuned to the evolving legal landscape in this area. This paper presents a brief overview of recent disputes that have arisen around the world with respect to the acquisition, enforcement and licensing of patents that are essential to technical interoperability standards.

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