1. Michelle Emeterio has published an article titled
Antitrust Deterrence of Patent
Holdup: Refocusing on Competition as a Driver
of Technological Innovation, 12 UC Irvine L. Rev. 1085 (2022). Here is a link to the paper, and here is the
abstract:
Traditionally,
antitrust law has served as both deterrent against and remedy for the
monopolistic behavior known as patent holdup. Yet those who profit from patent
holdup not only deny its existence but also until very recently wielded an
enticing critique of the role of antitrust law in its deterrence—namely, that
antitrust law (1) disincentivizes technological innovation and (2) incentivizes
infringement.
After exploring
patent holdup and why the modern and historical goals of antitrust law are well
suited to combatting it, this Note provides direct and circumstantial evidence
of the existence of patent holdup as a real-world problem. It also looks at how
a sociopolitical power imbalance at work from 2017 until 2021 bolstered
attempts to immunize standard-essential patents from antitrust scrutiny. Next,
it covers why contract law alone is insufficient to remedy or deter patent
holdup. Additionally, this Note debunks the misguided admonition that
innovation will be deterred by antitrust scrutiny. Such admonition is premised
on the notions that unqualified patent rights, such as the right to maximize
prices and the right to exclude others from practicing one’s patent, are
necessary incentives for innovation and that antitrust enforcement suppresses
these incentives. This Note ends with a realistic view of the role of
injunctions in the context of standard-essential patents and the conclusion
that a recent governmental policy shift towards continuing to allow firms to
seek injunctions while preserving the role of antitrust law is the only sensible
approach to take.
2.
Brian J. Love and Christian Helmers have published an article titled Are Market Prices for Patent Licenses
Observable? Evidence from 4G and 5G Licensing, 24 Colum. Sci. & Tech.
L. Rev. 55 (2022). Here is a link, and
here is the abstract:
Despite the
pervasiveness of patent licensing in many industries, there is a dearth of
publicly available information on licensing transactions. Notably, information
on price–i.e., the royalty agreed upon by licensor and licensee–is purposefully
kept secret. We assess to what extent “market prices” on patent licenses are
observable by assembling all publicly available information on royalty amounts
associated with the licensing of 4G and 5G standard essential patents (SEPs).
Our data come from a range of sources including court verdicts and litigation
settlements, arbitration awards, public announcements, and published licensing
agreements. We show that even for a highly visible technology such as mobile
broadband, the available price points are few and far between. Moreover, any
comparison of the available data points, let alone their aggregation, is
extremely challenging due to largely unobservable heterogeneity in the terms
and scope of the underlying licensing agreements. Our results point to a lack
of transparency in the market for patent licensing that might adversely affect
market participants and competition more broadly.
3.
Sam V. Wizon has published an article titled Anti-Suit Injunctions and FRAND:
The Law of What Land?, 64 B.C. L. Rev. 2822 (2022). Here is a link, and here is the abstract:
A standard is the
mechanism through which a recurring problem is abstracted to an easily
implemented common solution. Standards encourage innovation by reducing the
cost of solving common problems, and benefit consumers by creating safer, more
affordable products. To encourage proliferation of standards, private
consortiums require patents on standards technology to be licensed on
reasonable terms. This requirement, known as the fair, reasonable, and
non-discriminatory (FRAND) obligation, is vague and has been the subject of
extensive litigation, particularly as standardized technologies enjoy increased
adoption and create large profits. To allow society to continue harnessing the
benefits of standardization, courts should refrain from using the anti-suit
injunction in cases of concurrent jurisdiction over FRAND disputes. The courts'
increasing use of the anti-suit injunction encourages litigants to forum shop,
harms international relations, and threatens the predictability that businesses
need to invest in research and development. These consequences threaten to
hamper standards development as well as the benefits to consumers and society.
This Note argues against the use of the anti-suit injunction in FRAND suits.
Additionally, this Note argues that standard-setting organizations should
import choice of law and forum selection clauses into FRAND contracts to
facilitate FRAND negotiations. These clauses can remove the incentives for
courts to issue anti-suit injunctions, and for litigants to request them.
