Abstract

http://ssrn.com/abstract=2209521
 


 



Patent Assertion Entities: Six Actions the Antitrust Agencies Can Take


Michael A. Carrier


Rutgers University School of Law - Camden

January 30, 2013

CPI Antitrust Chronicle, Winter 2013, Vol. 1 No. 2

Abstract:     
One of the most pressing issues confronting antitrust in 2013 (and beyond) involves patent assertion entities (“PAEs”), previously known as patent trolls. Supporters proclaim PAEs’ benefits to “invention markets.” Critics lament extortion-like demands. Into this debate tiptoes antitrust, wondering if it can play any meaningful role.

In this article, I offer six actions the antitrust agencies can take to address PAEs: (1) Offer guidance about potential harms from patent aggregation, (2) Promote transparency, (3) Prohibit transfers to PAEs that refuse to adhere to previous standards-based licensing promises, (4) Use PAEs’ distinct incentives to employ Clayton Act Section 7 when “plus” factors are met, (5) Monitor collusive activity, and (6) Consider the use of FTC Section 5.

Antitrust enforcement is crucial to the protection of consumers and a competitive marketplace. Even if certain PAEs can justify some of their conduct, that does not mean that all PAE activity is immune from antitrust scrutiny. For if it was so protected, then the most aggressive and unjustified behavior, undertaken by PAEs with the greatest market power and largest portfolios, and inflicting the greatest harm on rivals and consumers, would fall through the antitrust cracks.

The novelty of PAE behavior ensures that the framework must be applied flexibly. But antitrust enforcement cannot automatically be shunned in a context that presents new and powerful opportunities to inflict anticompetitive harm.

Number of Pages in PDF File: 12

Keywords: patent assertion entity (PAE), nonpracticing entity (NPE), patent troll, antitrust

JEL Classification: K21, L40, L41, L63, O31, O34, O38

Accepted Paper Series


Download This Paper

Date posted: January 31, 2013  

Suggested Citation

Carrier, Michael A., Patent Assertion Entities: Six Actions the Antitrust Agencies Can Take (January 30, 2013). CPI Antitrust Chronicle, Winter 2013, Vol. 1 No. 2. Available at SSRN: http://ssrn.com/abstract=2209521

Contact Information

Michael A. Carrier (Contact Author)
Rutgers University School of Law - Camden ( email )
217 North Fifth Street
Camden, NJ 08102-1203
United States
856-225-6380 (Phone)
856-225-6516 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 2,116
Downloads: 406
Download Rank: 39,796
Paper comments
No comments have been made on this paper

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.453 seconds