Standards, Royalty Stacking and Collective Action

CPI Antitrust Chronicle, Mar. 2015 (2)

University of Utah College of Law Research Paper No. 114

9 Pages Posted: 2 Apr 2015 Last revised: 26 Aug 2015

See all articles by Jorge L. Contreras

Jorge L. Contreras

University of Utah - S.J. Quinney College of Law

Date Written: March 31, 2015

Abstract

This article summarizes economic and legal theories regarding royalty stacking in view of recent U.S. case law that has addressed the impact of stacking on the reasonableness of patent royalty rates. It critiques the Federal Circuit’s decision in Ericsson v. D-Link, holding that actual evidence of stacked payments must be proffered to support a jury instruction on stacking. It concludes with a proposal for reducing the impact of royalty stacking through collective royalty cap negotiation and a call for antitrust agencies to confirm that such negotiations would have pro-competitive benefits and be analyzed under a rule of reason standard.

Keywords: standards, FRAND, RAND, patent, stacking, antitrust, royalty, jury instruction

Suggested Citation

Contreras, Jorge L., Standards, Royalty Stacking and Collective Action (March 31, 2015). CPI Antitrust Chronicle, Mar. 2015 (2), University of Utah College of Law Research Paper No. 114, Available at SSRN: https://ssrn.com/abstract=2587954

Jorge L. Contreras (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

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