Patent Holdup, Patent Remedies, and Antitrust Responses

59 Pages Posted: 26 Sep 2008 Last revised: 28 Dec 2013

See all articles by Thomas F. Cotter

Thomas F. Cotter

University of Minnesota Law School

Date Written: December 10, 2008


Commentators on antitrust and patent law over the past decade have advanced the view that "patent holdup" poses a serious threat to innovation and consumer welfare. In recent months, however, a more skeptical literature has emerged to challenge patent holdup on both theoretical and empirical grounds. This article responds to the skeptics' theoretical challenge, by placing patent holdup within the broader class of holdup or holdout behavior as discussed in mainstream law and economics. Defining patent holdup as a type of opportunistic behavior that threatens substantial harms to both static and dynamic efficiency, I argue that both the law of patent remedies and the law of antitrust should play a role (albeit a limited one) in responding to, or enabling private efforts to avoid, patent holdup. As for remedies, I argue, among other things, that consistent with the Supreme Court's decision in eBay Inc. v. MercExchange, L.L.C. courts should award damages in lieu of injunctive relief in a subset of patent infringement cases involving serious risks of holdup-generated harm to either static or dynamic welfare. On the antitrust side, I argue, contrary to the D.C. Circuit's holding in Rambus, Inc. v. FTC, that a patent owner's deceptive conduct that results in the adoption of its patented technology or that enables the patent owner to avoid a RAND licensing commitment can be actionable as a violation of Sherman Act ¿ 2. I also argue that, consistent with the recommendations of many recent observers (including the Antitrust Modernization Commission), joint bargaining between standard setting organization members, on the one hand, and individual members/patent owners, on the other, over the price terms of patent licenses should be evaluated under the rule of reason-though only to the extent that such collective bargaining is reasonably necessary to avoid the threat that holdup poses to dynamic efficiency.

Keywords: patent holdup, standard setting, reasonable royalties

JEL Classification: K21

Suggested Citation

Cotter, Thomas F., Patent Holdup, Patent Remedies, and Antitrust Responses (December 10, 2008). Journal of Corporation Law, Vol. 34, No. 1151, 2009, Minnesota Legal Studies Research Paper No. 08-39, Available at SSRN: or

Thomas F. Cotter (Contact Author)

University of Minnesota Law School ( email )

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Minneapolis, MN 55455
United States
612-624-7527 (Phone)

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