Enjoining Injunctions: The Case Against Antitrust Liability for Standard Essential Patent Holders Who Seek Injunctions

The Antitrust Source, pp. 1-7, October 2014

George Mason Law & Economics Research Paper No. 14-58

8 Pages Posted: 30 Oct 2014

See all articles by Douglas H. Ginsburg

Douglas H. Ginsburg

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

Taylor Owings

U.S. Court of Appeals for the District of Columbia Circuit

Joshua D. Wright

George Mason University - Antonin Scalia Law School, Faculty

Date Written: October 28, 2014

Abstract

A standard essential patent (SEP) may give the patent holder market power in the market for an input that technology manufacturers need in order to make their products compatible with each other. Several commentators have argued that, when a patent becomes part of a standard pursuant to an agreement among competitors given in exchange for the patent holder’s promise to license the technology under fair, reasonable, and non-discriminatory (FRAND) terms, antitrust law should limit the holder’s right to seek an injunction to stop an infringing manufacturer from selling its standardized product. We disagree for two reasons: First, antitrust sanctions are not necessary, given the law of contracts and of injunctions, to avoid harm to consumers and, second, the application of antitrust law in this situation could, by undermining the ability of courts to tailor appropriate remedies, diminish the incentives for companies to innovate and for industries to adopt standards.

Keywords: antitrust law, competition, consumer welfare, contract, eBay, exclusion order, FRAND terms, injunction, innovation, ITC, MercExchange, monetary damages, Noerr-Pennington doctrine, remedies, standard essential patent, SEP, standard-setting organization, SSO, standardization

JEL Classification: K12, K21

Suggested Citation

Ginsburg, Douglas H. and Owings, Taylor and Wright, Joshua D., Enjoining Injunctions: The Case Against Antitrust Liability for Standard Essential Patent Holders Who Seek Injunctions (October 28, 2014). The Antitrust Source, pp. 1-7, October 2014; George Mason Law & Economics Research Paper No. 14-58. Available at SSRN: https://ssrn.com/abstract=2515949

Douglas H. Ginsburg (Contact Author)

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

Taylor Owings

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

333 Constitution Ave., NW
Washington, DC 20001
United States

Joshua D. Wright

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

3301 Fairfax Drive
Arlington, VA 22201
United States

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