Standards and Patent Assertion Entities at the IP-Antitrust Interface: Adhering to Basic Principles
2 China Antitrust Law Journal 23-43 (2018)
22 Pages Posted: 8 Feb 2019
Date Written: October 25, 2018
The United States antitrust approach to intellectual property has evolved over time. The same antitrust analysis now applies to conduct involving IP as to conduct involving other forms of property, taking into account the specific characteristics of the particular property right.
However, there have been significant calls recently for presumptions that infringements suits and licensing conduct by patent assertion entities (PAEs) labeled “patent trolls” and holders of standard essential patents (SEPs) are monopolization or attempts to monopolize that violate Sherman Act §2, 15 U.S.C. §2. This paper argues that the basic principles of keeping in mind history and context, and general antitrust principles, apply equally to SEPs and PAEs as to other economic phenomena, and there is no need for any special presumptions.
Keywords: SEP, PAE, standards, patent assertion entities, antitrust
JEL Classification: K21, K29, K39
Suggested Citation: Suggested Citation