OECD Competition Committee Roundtable on 'Licensing of IP Rights and Competition Law' (June 6, 2019)

Abstract

This note provides an economic approach to antitrust analysis of differential pricing (here, used synonymously with “price discrimination”) and discriminatory refusals to license; grantbacks and cross-licenses; and no-challenge clauses. The analysis applies to both intellectual property rights (IPRs) in general, as well as to standard-essential patents (SEP) as to which the holder has made a commitment to license on fair, reasonable, and nondiscriminatory (FRAND) terms. This note also addresses the alleged “patent thicket” problem and the ex-ante incremental (or “inherent”) value approach to SEP valuation.

Keywords: price discrimination, discriminatory refusals to license, grantbacks, cross-licenses, no-challenge clauses; SEPs, FRAND, patent thickets, ex-ante incremental value

JEL Classification: K21, L4, L5