Some New Papers on SEPs

1. Jorge Contreras has posted on ssrn his "Comments Submitted to Japan Patent Office on Guide to Licensing Negotiations Involving Standard Essential Patents."  Here is a link, and here is the abstract:

These comments were submitted to the Japan Patent Office (JPO) in response to its request for comments on its Guide to Licensing Negotiations Involving Standard Essential Patents (Draft Mar. 9, 2018). These comments relate primarily to:
(1) assertion of SEPs by Patent Assertion Entities,
(2) confidentiality of information in SEP negotiations,
(3) Bottom-up royalty calculations, and
(4) exclusivity. 

The comments are only five pages long, and well worth reading; Professor Contreras makes some valuable points.  For more on the JPO's request for comments, see here.

2.  Jorge Padilla, Judge Douglas Ginsburg, and Koren Wong-Ervin have posted a paper on ssrn titled Antitrust Analysis Involving Intellectual Property and Standards: Implications from Economics, forthcoming in the George Mason Law Review.  Here is a link to the paper, and here is the abstract:

There is a significant industrial organization (IO) economics literature on the economics of innovation and intellectual property (IP) protection. As some courts and antitrust agencies have recognized, the IO economics toolkit for business arrangements (e.g., vertical restraints, tying and bundling, etc.) involving IP rights is sufficiently flexible to be applied in high-technology areas involving antitrust and IP. In this Article, the authors explain the economics of innovation and IP protection, licensing, and compulsory licensing, with specific applications to standards development and to standard-essential patents. The authors then propose first-best approaches based on the implications of the economics that courts and agencies can apply at each stage of an antitrust inquiry, from market definition and market power to the assessment of particular business practices. The authors conclude by providing a summary of the approach applied in each major antitrust jurisdiction—China, the European Union, India, Japan, Korea, and the United States.

3. Christopher Weber and Katharina Brandt have published a paper titled Salomonische Kommission?  Die Mitteilung der EU zu Standaresseziellen Patenten, ("Solomonic Commission?  The EU Communication on Standard-Essential Patents") in the April 2018 issue of Mitteilungen der deutschen Patentanwälten (pages 153-56).  Here is the abstract (my translation):

The enforcement of standard-essential patents in the gray area between patent and competition law has occupied courts and authorities for years.  More than two years since the groundbreaking decision of the CJEU in Huawei v. ZTE, the European Commission has now expressed itself on how these patents should be handled.  In its Communication, the Commission not only invites stakeholders to work on improving documentation and declaration practice, but also formulates recommendations for action on the (currently controversial) problems that  result from the handling of standard essential patents.  

This issue of Mitteilungen der deutschen Patentanwälten also includes a commentary by Dr. Annette Anette Gärtner on the March 30, 2017 decision of the Düsseldorf Oberlandesgericht in a SEP case, No. I-15 U 66/15, previously noted on this blog here.  For my previous post on the European Commission's November 29, 2017 Communication on SEPs, see here.