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What's Wrong with Royalties in High Technology Industries?

Damien Geradin

George Mason University School of Law; Tilburg University - Tilburg Law and Economics Center (TILEC)

May 1, 2008

TILEC Discussion Paper Series No. 2009-043

Over the past few years, there has been an unprecedented degree of interest among competition authorities, scholars, Standard-Setting Organizations (hereafter, SSOs) and trade associations with respect to the level of royalties that are charged by holders of intellectual property rights (IPRs). For instance, in the past two years, the US Department of Justice (DoJ) granted business letter clearance to two SSOs - VITA and IEEE - to implement new IPR policies designed to control the IPR costs. In April 2007, the DoJ and the Federal Trade Commission (FTC) jointly released a report on Antitrust Enforcement and Intellectual Property Rights. But the interest is not limited to the United States. The European Commission is currently investigating the compatibility of certain licensing regimes and conduct within SSOs against EC competition law. Reflecting the debate at the policy level, scholars have produced a large body of legal and economic literature on IPR and standardization issues, including patent hold-up (where the patent holder exploits ill-gotten market power in excessive licensing fees) and royalty stacking (where multiple patents must be licensed and thus the royalty rates stack up to excessive amounts).

Against this background, this paper addresses the issue of whether something has gone wrong with royalties in high technology industries. This paper seeks to answer this question first by looking at a number of concrete scenarios where firms holding IPRs seek to obtain a return on their patent portfolios by licensing them. As will be seen, the behaviour of these firms essentially depends on whether they are vertically-integrated or non vertically-integrated. Vertically-integrated firms engage in research and development activities, patenting at least some of their inventions, and also manufacturing products based on their own innovations and the innovations produced by others. Non vertically-integrated firms, in contrast specialize in one or the other layers of production. Pure upstream firms conduct research and development activities and patent their innovations, but they do not engage in manufacturing. Downstream firms specialize in manufacturing, but do not engage in R&D.

Number of Pages in PDF File: 16

Keywords: intellectual property, IP, antitrust, competition, royalties, royalty stacking, hold-up, patent, licensing, vertical integration, innovation

JEL Classification: K21, L22, L40, 031, 034

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Date posted: May 7, 2008 ; Last revised: December 28, 2013

Suggested Citation

Geradin, Damien, What's Wrong with Royalties in High Technology Industries? (May 1, 2008). TILEC Discussion Paper Series No. 2009-043. Available at SSRN: http://ssrn.com/abstract=1104315 or http://dx.doi.org/10.2139/ssrn.1104315

Contact Information

Damien Geradin (Contact Author)
George Mason University School of Law
3301 Fairfax Drive
Arlington, VA 22201
United States

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Tilburg University - Tilburg Law and Economics Center (TILEC) ( email )
Warandelaan 2
Tilburg, 5000 LE
HOME PAGE: http://www.tilburguniversity.nl/tilec/
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