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

49 Pages Posted: 12 Mar 2009 Last revised: 28 Dec 2013

See all articles by Bruce H. Kobayashi

Bruce H. Kobayashi

George Mason University - Antonin Scalia Law School

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty

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Date Written: March 1, 2009

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 holdup of members of standard setting organizations. Although 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: Securities, law, antitrust, restraint, regulation, patents, holdup, standard

Suggested Citation

Kobayashi, Bruce H. and Wright, Joshua D., Federalism, Substantive Preemption, and Limits on Antitrust: An Application to Patent Holdup (March 1, 2009). TILEC Discussion Paper No. 2009-007, Available at SSRN: https://ssrn.com/abstract=1357189 or http://dx.doi.org/10.2139/ssrn.1357189

Bruce H. Kobayashi

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
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703-993-8034 (Phone)
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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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