1. Jan Boone, Florian Schuett, and E. Tarantino have posted a paper titled Price Commitments in Standard Setting under Asymmetric Information. Here is a link to the paper, and here is the abstract:
Many observers have voiced concerns that standards create essentiality and thus monopoly power for the holders of standard essential patents (SEPs). To address these concerns, Lerner and Tirole (2015) advocate structured price commitments, whereby SEP holders commit to the maximum royalty they would charge were their technology included in the standard. We consider a setting in which a technology implementer holds private information about demand. In this setting, price commitments increase eﬃciency not only by curbing SEP holders’ market power, but also by alleviating distortions in the design of the royalty scheme. In the absence of price commitments, the SEP holder distorts the implementer’s output downward in the low-demand state to reduce the high-demand type’s information rent. Price commitments reduce this distortion.
2. J. Gregory Sidak has posted a paper titled Misconceptions Concerning the Use of Hedonic Prices to Determine FRAND or RAND Royalties for Standard-Essential Patents, 4 Criterion J. Innov. 501 (2019). Here is a link, and here is the abstract:
Two months after I published Hedonic Prices and Patent Royalties in August 2017, Dr. Allan Shampine of the CompassLexecon economic consultancy published a review of that article arguing that the hedonic price model for LRDIMMs does not comply with the Federal Circuit’s decision in Ericsson Inc. v. D-Link Systems, Inc. Shampine’s criticisms of the hedonic price model rest on incorrect premises of law and economics. He criticizes the model for failing to apply the ex ante incremental value approach — a theory that contends that a FRAND or RAND royalty should not exceed the incremental value of the patented technology over the next-best alternative available at the time of standard adoption. Yet, like many economists, Shampine erroneously assumes that the ex ante incremental value approach is a positive principle of law, rather than merely a normative prescription that he happens to favor. He fails to recognize that the hedonic price model separates the value of the patented technology from the value of standardization, such that the model faithfully complies with the Federal Circuit’s apportionment requirement reiterated in Ericsson v. D-Link. Shampine also criticizes the hedonic price model for relying on data that became available after the moment of standard adoption. He then proposes — as an alternative to the hedonic price model — reliance on hypothetical data concerning consumer demand that typically would not exist at the time of standard adoption. His suggested approach would fail Daubert because it is manifestly unreliable and unscientific. In contrast, the econometric methodology that the hedonic price model employs has passed muster under Daubert in at least one publicly reported federal district court case concerning SEPs. In sum, Shampine’s criticisms do not detract from the reliability and usefulness of hedonic price analysis in calculating a FRAND or RAND royalty for a given SEP or portfolio of SEPs. To the contrary, if embraced, Shampine’s suggestions would reduce the intellectual rigor, replicability, and reliability of expert economic testimony concerning the calculation of a FRAND or RAND royalty.
The Shampine paper that Mr. Sidak is responding to is available on the Antitrust Source's website here.
3. Matthew Spitzer has published a short article titled FTC v. Qualcomm: Origins and Problems on the Competition Policy International blog, arguing that "the circumstances under which the FTC chose to bring this case should lead everyone, including the Court of Appeals, to view this case with skepticism." (Needless to say, I disagree.) Elsewhere, Florian Mueller published several posts on the recently concluded Unwired Planet hearings before the U.K. Supreme Court (all available here), and Amy Sandys has a discussion of the hearings (titled Untangling the wires of global FRAND) on JUVE Patent. Law360 published an article titled US Gov't Wades into HTC-Ericsson License Dispute, discussing the DOJ's recent filing of an amicus brief in the pending appeal in HTC Corp. v. Telefonaktienbolaget LM Ericsson. The Department also recently filed a statement of interest in a district court case, Lenovo v. IPCom, arguing that it is not a violation of U.S. antitrust law to seek an injunction for the infringement of a FRAND-committed SEP.
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