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The Troubling Use of Antitrust to Regulate FRAND Licensing

10 Pages Posted: 16 Oct 2015  

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School, Faculty

Koren W. Wong-Ervin

Qualcomm Incorporated

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty

Date Written: October 15, 2015

Abstract

In the last year, we have seen a growing — and troubling — trend as courts and competition agencies around the globe propose and impose antitrust sanctions on holders of standard-essential patents (“SEPs”) for seeking injunctive relief against alleged infringers and for reneging on their commitment to license their patents on fair, reasonable, and non-discriminatory (“FRAND”) terms. These new rules, recently adopted in the European Union and in Korea, proposed in Canada and Japan, and favored by some government officials in the United States, are premised upon the erroneous beliefs that (1) patent “holdup” is a widespread problem that results in significantly adverse consequences for competition and innovation and (2) whatever the magnitude of the problem, it requires an antitrust remedy. In this article, we discuss the lack of empirical evidence to substantiate the claim that patent holdup is a systemic problem for competition and consumers, and the likely harm to both competition and consumers from imposing antitrust liability for patent holdup.

Keywords: antitrust, FRAND, licensing, patent holdup, standard essential patent, SEP, standard setting organizations, SSOs

JEL Classification: K21, L4, L5

Suggested Citation

Ginsburg, Douglas H. and Wong-Ervin, Koren W. and Wright, Joshua D., The Troubling Use of Antitrust to Regulate FRAND Licensing (October 15, 2015). CPI Antitrust Chronicle, Vol. 10, No. 1, pp. 2-8, 2015; George Mason Legal Studies Research Paper No. LS 15-37; George Mason Law & Economics Research Paper No. 15-46. Available at SSRN: https://ssrn.com/abstract=2674759

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Koren W. Wong-Ervin

Qualcomm Incorporated

1730 Pennsylvania Ave N.W.
Suite 850
Washington DC, DC 20006-1850
United States

Joshua D. Wright (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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