The Role of Antitrust in Preventing Patent Holdup

40 Pages Posted: 4 Aug 2020 Last revised: 8 Dec 2020

See all articles by Carl Shapiro

Carl Shapiro

University of California, Berkeley - Haas School of Business

Mark A. Lemley

Stanford Law School

Date Written: August 3, 2020

Abstract

Patent holdup has proven one of the most controversial topics in innovation policy, in part because companies with a vested interest in denying its existence have spent tens of millions of dollars trying to debunk it. Notwithstanding a barrage of political and academic attacks, both the general theory of holdup and its practical application in patent law remain valid and pose significant concerns for patent policy. Patent and antitrust law have made significant strides in the past fifteen years in limiting the problem of patent holdup. But those advances are currently under threat from the Antitrust Division of the Department of Justice, which has reversed prior policies and broken with the Federal Trade Commission to downplay the significance of patent holdup while undermining private efforts to prevent it. Ironically, the effect of the Antitrust Division’s actions is to create a greater role for antitrust law in stopping patent holdup. We offer some suggestions for moving in the right direction.

Suggested Citation

Shapiro, Carl and Lemley, Mark A., The Role of Antitrust in Preventing Patent Holdup (August 3, 2020). Stanford Law and Economics Olin Working Paper #554, Available at SSRN: https://ssrn.com/abstract=3666211 or http://dx.doi.org/10.2139/ssrn.3666211

Carl Shapiro

University of California, Berkeley - Haas School of Business ( email )

545 Student Services Building, #1900
2220 Piedmont Avenue
Berkeley, CA 94720
United States
510-642-5905 (Phone)

HOME PAGE: http://faculty.haas.berkeley.edu

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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