Patent 'Trespass' and the Royalty Gap: Exploring the Nature and Impact of Patent Holdout
34 Santa Clara High Tech. L.J. 179 (2018)
73 Pages Posted: 7 Jun 2017 Last revised: 15 Mar 2021
Date Written: June 6, 2017
This paper studies the problem of patent holdout. Part I reviews the economic theory of holdout, with a specific emphasis on patents. It shows that the ordinary concept of holdout refers to the non-transacting conduct of a property owner, and that “patent trespass” is a better characterization for technology implementers’ attempt to evade the conclusion of licensing agreements. Part II proposes a definition and provide illustrations of patent trespass. To that end, the paper relies on the qualitative data gathered during interviews with industry stakeholders as well as on an analysis of holdout in case-law. Part III exposes the factors that determinatively make patent trespass transactional, systematic and/or systemic. Part IV records the results of of a quantitative study of patent trespass, based on the intuitions that arose from received theory and qualitative interviews as exposed in previous parts. The preliminary empirical results show a correlational link between the nature of patent trespass and the heterogeneity of market actors and markets. In particular, MNCs operating in developed markets seem to primarily deploy extensive delaying tactics with the main goal of reducing their royalty payments, while large firms in emerging markets (LFE) and small to medium-sized enterprises (SMEs), especially the “long tail” of microvendors, seek to avoid payment altogether.
Keywords: Patent, holdout, holdup, FRAND, RAND, standards, SDO, SSO, economics, antitrust
JEL Classification: K00, K12, K21, L41, L63, L96, O34
Suggested Citation: Suggested Citation