Proportional Restraints in Horizontal Patent Settlements
34 Pages Posted: 4 Oct 2018 Last revised: 11 Aug 2020
Date Written: October 2, 2018
Competitors embroiled in a patent dispute always prefer to preserve and share monopoly profits, even if the patent is likely invalid. Antitrust has come to embrace a policy that requires horizontal settlements to be "proportional" in the sense that their anticompetitive effects are commensurate with the expected result of counterfactual patent litigation, which might have excluded the patentee's rival(s). But the standard presents serious practical complications, due to the uncertainty about counterfactual litigation, and as yet it has only been successfully applied to one type of settlement. We show that one can evaluate proportionality by focusing entirely on the nature of the firms' agreement, as this determines what the firms can agree on in relation to their expectations about litigation. We exploit this to propose a new enforcement approach that avoids the implementation problems with the current regime.
This is a previous draft. The updated version is available at: https://papers.ssrn.com/abstract=3670815
Keywords: Patents, Antitrust, Patent Settlements, Innovation, Licensing, Horizontal Restraints, Validity, Patent Quality, Reverse Payment, Pay for Delay, Actavis
JEL Classification: L40, L41, L10, K00, K21, O30, O31, O32, O34, O38
Suggested Citation: Suggested Citation