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

49 Pages Posted: 13 Jun 2008 Last revised: 28 Dec 2013

Bruce H. Kobayashi

George Mason University - School of Law

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty

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Date Written: June 1, 2008

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.

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

JEL Classification: K12, K21, L41, L44

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: https://ssrn.com/abstract=1143602

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)

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

3301 Fairfax Drive
Arlington, VA 22201
United States

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