IP Rights Delayed are IP Rights Denied: The Global Antitrust Institute’s Comment on the European Commission’s 2023 Proposal to Regulate Standard-Essential Patents

20 Pages Posted: 16 Aug 2023

See all articles by Alexander Raskovich

Alexander Raskovich

George Mason University - Antonin Scalia Law School, Faculty

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School

Bruce H. Kobayashi

George Mason University - Antonin Scalia Law School

Abbott B. Lipsky

George Mason University - Antonin Scalia Law School

John M. Yun

George Mason University - Antonin Scalia Law School

Date Written: August 15, 2023

Abstract

The EC has proposed a regulatory framework for SEPs, the heart of which is the establishment of a regulatory authority—a “competence center”—charged with maintaining a registry of SEPs with detailed information drawn from required submissions by SEP holders and “administering a system for essentiality checks and processes for aggregate royalty determination and FRAND determination.” The proposal's stated aim is to facilitate licensing negotiations between SEP holders and implementers, applying a balanced approach towards the bargaining parties. The approach is highly unbalanced, however. It would sharpen incentives for holdout by implementers and thereby substantially weaken SEP holders’ ability to appropriate the value of their IP. In particular, implementers would be empowered to substantially delay requests by SEP holders for injunctive relief against infringement in national courts of law. It is a truism that justice delayed is justice denied. Likewise, IP rights delayed are IP rights denied. Beyond delay, the Proposal would entirely bar the recovery of some losses from infringement in certain circumstances. As a result, the practical effect of the Proposal would be to induce licensing disputes where there would otherwise have been none, supplanting private bargaining with a less well-informed and inefficient administrative process that would materially depress incentives for innovation and standardization.

Keywords: intellectual property rights, standard-essential patents, IP licensing, regulation

JEL Classification: D04, D23, K23, L15, L24, L51, O30, O34, O38

Suggested Citation

Raskovich, Alexander and Ginsburg, Douglas H. and Kobayashi, Bruce H. and Lipsky, Abbott B. and Yun, John M., IP Rights Delayed are IP Rights Denied: The Global Antitrust Institute’s Comment on the European Commission’s 2023 Proposal to Regulate Standard-Essential Patents (August 15, 2023). George Mason Law & Economics Research Paper No. 23-12, Available at SSRN: https://ssrn.com/abstract=4541680 or http://dx.doi.org/10.2139/ssrn.4541680

Alexander Raskovich (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Bruce H. Kobayashi

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8034 (Phone)
703-993-8088 (Fax)

HOME PAGE: http://mason.gmu.edu/~bkobayas

Abbott B. Lipsky

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

John M. Yun

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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