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Federalism, Substantive Preemption, and Limits on Antitrust: An Application to Patent Holdup


Bruce H. Kobayashi


George Mason University - School of Law

Joshua D. Wright


Federal Trade Commission; George Mason University School of Law

June 1, 2008

Journal of Competition Law and Economics, Forthcoming
George Mason Law & Economics Research Paper No. 08-32

Abstract:     
In Credit Suisse v. Billing, the Court held that the securities law implicitly precludes the application of the antitrust laws to the conduct alleged in that case. The Court considered several factors, including the availability and competence of other laws to regulate unwanted behavior, and the potential that application of the antitrust laws would result in unusually serious mistakes. This paper examines whether similar considerations suggest restraint when applying the antitrust laws to conduct that is normally regulated by state and other federal laws. In particular, we examine the use of the antitrust laws to regulate the problem of patent hold up of members of standard setting organizations. While some have suggested that this conduct illustrates a gap in the current enforcement of the antitrust laws, our analysis finds that such conduct would be better evaluated under the federal patent laws and state contract laws.

Number of Pages in PDF File: 49

Keywords: antitrust, federalism, opportunism, patent holdup, preemption, royalty stacking, standard setting

JEL Classification: K12, K21, L41, L44

Accepted Paper Series





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Date posted: June 13, 2008 ; Last revised: December 28, 2013

Suggested Citation

Kobayashi, Bruce H. and Wright, Joshua D., Federalism, Substantive Preemption, and Limits on Antitrust: An Application to Patent Holdup (June 1, 2008). Journal of Competition Law and Economics, Forthcoming; George Mason Law & Economics Research Paper No. 08-32. Available at SSRN: http://ssrn.com/abstract=1143602

Contact Information

Bruce H. Kobayashi
George Mason University - School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8034 (Phone)
703-993-8088 (Fax)
HOME PAGE: http://mason.gmu.edu/~bkobayas
Joshua D. Wright (Contact Author)
Federal Trade Commission ( email )
601 New Jersey Ave., NW
Washington, DC 20580
United States
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
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