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

Posted: 13 Oct 2009

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

Multiple version iconThere are 3 versions of this paper

Date Written: September 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.

Suggested Citation

Kobayashi, Bruce H. and Wright, Joshua D., Federalism, Substantive Preemption, and Limits on Antitrust: An Application to Patent Holdup (September 2009). Journal of Competition Law and Economics, Vol. 5, Issue 3, pp. 469-516, 2009, Available at SSRN: https://ssrn.com/abstract=1486557 or http://dx.doi.org/nhp006

Bruce H. Kobayashi (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

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HOME PAGE: http://mason.gmu.edu/~bkobayas

Joshua D. Wright

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

3301 Fairfax Drive
Arlington, VA 22201
United States

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