Apply Evidence-based Approach to Antitrust Law Equally to Innovators and Implementers

EDITORIAL NOTE: Last week a distinguished group of thought leaders sent the following open-letter to Assistant Attorney General Makan Delrahim to support his review of licensing policies. The letter appears below, and is republished here with permission.

________________

February 13, 2018

Assistant Attorney General Makan Delrahim
Department of Justice Antitrust Division
950 Pennsylvania Ave. NW
Washington, DC 20530-0001

Dear Assistant Attorney General Delrahim,

As judges, former judges and government officials, legal academics and economists who are experts in antitrust and intellectual property law, we write to express our support for your recent announcement that the Antitrust Division of the Department of Justice will adopt an evidence-based approach in applying antitrust law equally to both innovators who develop and implementers who use technological standards in the innovation industries.

We disagree with the letter recently submitted to you on January 24, 2018 by other parties who expressed their misgivings with your announcement of your plan to return to this sound antitrust policy. Unfortunately, their January 24 letter perpetuates the long-standing misunderstanding held by some academics, policy activists, and companies, who baldly assert that one-sided “patent holdup” is a real-world problem in the high-tech industries. This claim rests entirely on questionable models that predict that opportunistic behavior in patent licensing transactions will result in higher consumer prices. These predictions are inconsistent with actual market data in any high-tech industry.

It bears emphasizing that no empirical study has demonstrated that a patent-owner’s request for injunctive relief after a finding of a defendant’s infringement of its property rights has ever resulted either in consumer harm or in slowing down the pace of technological innovation. Given the well understood role that innovation plays in facilitating economic growth and wellbeing, a heavy burden of proof rests on those who insist on the centrality of “patent holdup” to offer some tangible support for that view, which they have ultimately failed to supply in the decade or more since that theory was first propounded. Given the contrary conclusions in economic studies of the past decade, there is no sound empirical basis for claims of a systematic problem of opportunistic “patent holdup” by owners of patents on technological standards.

Several empirical studies demonstrate that the observed pattern in high-tech industries, especially in the smartphone industry, is one of constant lower quality-adjusted prices, increased entry and competition, and higher performance standards. These robust findings all contradict the testable implications of “patent holdup” theory. The best explanation for this disconnect between the flawed “patent holdup” theory and overwhelming weight of the evidence lies in the institutional features that surround industry licensing practices. These practices include bilateral licensing negotiations, and the reputation effects in long-term standards activities. Both support a feed-back mechanism that creates a system of natural checks and balances in the setting of royalty rates. The simplistic models of “patent holdup” ignore all these moderating effects.

Of even greater concern are the likely negative social welfare consequences of prior antitrust policies implemented based upon nothing more than the purely theoretical concern about opportunistic “patent holdup” behavior by owners of patented innovations incorporated 2 into technological standards. For example, those policies have resulted in demands to set royalty rates for technologies incorporated into standards in the smartphone industry according to particular components in a smartphone. This was a change to the longstanding industry practice of licensing at the end-user device level, which recognized that fundamental technologies incorporated into the cellular standards like 2G, 3G, etc., optimize the entire wireless system and network, and not just the specific chip or component of a chip inside a device.

In support, we attach an Appendix of articles identifying the numerous substantive and methodological flaws in the “patent holdup” models. We also point to rigorous empirical studies that all directly contradict the predictions of the “patent holdup” theory.

For these reasons, we welcome your announcement of a much-needed return to evidence based policy making by antitrust authorities concerning the licensing and enforcement of patented innovations that have been committed to a technological standard. This sound program ensures balanced protection of all innovators, implementers, and consumers. We are confident that consistent application of this program will lead to a vibrant, dynamic smartphone market that depends on a complex web of standard essential patents which will continue to benefit everyone throughout the world.

Sincerely,

Jonathan Barnett
Professor of Law
USC Gould School of Law

Ronald A. Cass
Dean Emeritus,
Boston University School of Law
Former Vice-Chairman and Commissioner,
United States International Trade Commission

Richard A. Epstein
Laurence A. Tisch Professor of Law,
New York University School of Law
James Parker Hall Distinguished Service Professor of Law Emeritus,
University of Chicago Law School

The Honorable Douglas H. Ginsburg
Senior Circuit Judge,
United States Court of Appeals for the District of Columbia Circuit, and
Professor of Law,
Antonin Scalia Law School
George Mason University

Justin (Gus) Hurwitz
Assistant Professor of Law
University of Nebraska College of Law

David J. Kappos
Former Under Secretary of Commerce and Director
United States Patent & Trademark Office

The Honorable Paul Michel
Chief Judge (Ret.),
United States Court of Appeals for the Federal Circuit

Adam Mossoff
Professor of Law
Antonin Scalia Law School
George Mason University

Kristen Osenga
Professor of Law
University of Richmond School of Law

David J. Teece
Thomas W. Tusher Professor in Global Business
Haas School of Business
University of California at Berkeley

Joshua D. Wright
University Professor,
Antonin Scalia Law School
George Mason University
Former Commissioner,
Federal Trade Commission

APPENDIX

Richard A. Epstein & Kayvan Noroozi, Why Incentives for Patent Hold Out Threaten to Dismantle FRAND and Why It Matters, BERKELEY TECH. L. REV. (forthcoming), https://ssrn.com/abstract=2913105

Anne Layne-Farrar, Why Patent Holdout is Not Just a Fancy Name for Plain Old Patent Infringement, CPI NORTH AMERICAN COLUMN (Feb. 2016), https://www.competitionpolicyinternational.com/wp-content/uploads/2016/02/North-AmericaColumn-February-Full.pdf

Anne Layne-Farrar, Patent Holdup and Royalty Stacking Theory and Evidence: Where Do We Stand After 15 Years of History?, OECD INTELLECTUAL PROPERTY AND STANDARD SETTING (Nov. 18, 2014), http://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DAF/COMP/WD%28 2014%2984&doclanguage=en

Alexander Galetovic & Stephen Haber, The Fallacies of Patent Holdup Theory, 13 J. COMP. L. & ECON., 1 (2017), https://academic.oup.com/jcle/article/13/1/1/3060409

Alexander Galetovic, Stephen Haber, & Lew Zaretzki, An Estimate of the Average Cumulative Royalty Yield in the World Mobile Phone Industry: Theory, Measurement and Results (Feb. 7, 2018), https://hooverip2.org/working-paper/wp18005

Alexander Galetovic, Stephen Haber, & Ross Levine, An Empirical Examination of Patent HoldUp (Nat’l Bureau of Econ. Research, Working Paper No. 21090, 2015), http://www.nber.org/papers/w21090.pdf

Douglas H. Ginsburg, Koren W. Wong-Ervin, & Joshua Wright, The Troubling Use of Antitrust to Regulate FRAND Licensing, CPI ANTITRUST CHRONICLE (Oct. 2015),
https://www.competitionpolicyinternational.com/assets/Uploads/GinsburgetalOct-151.pdf

Douglas H. Ginsburg, Taylor M. Ownings, & Joshua D. Wright, Enjoining Injunctions: The Case Against Antitrust Liability for Standard Essential Patent Holders Who Seek Injunctions, THE ANTITRUST SOURCE (Oct. 2014), https://ssrn.com/abstract=2515949

Gerard Llobet & Jorge Padilla, The Optimal Scope of the Royalty Base in Patent Licensing, 59 J. L. & ECON. 45 (2016), https://ssrn.com/abstract=2417216

Keith Mallinson, Theories of Harm with SEP Licensing Do Not Stack Up, IP FIN. BLOG (May 24, 2013), http://www.ip.finance/2013/05/theories-of-harm-with-sep-licensing-do.html

Jorge Padilla & Koren W. Wong-Ervin, Portfolio Licensing to Makers of Downstream End-User Devices: Analyzing Refusals to License FRAND-Assured Standard-Essential Patents at the Component Level, 62 THE ANTITRUST BULLETIN 494 (2017), https://doi.org/10.1177/0003603X17719762

Jonathan D. Putnam & Tim A. Williams, The Smallest Salable Patent-Practicing Unit (SSPPU): Theory and Evidence (Sept. 2016), https://ssrn.com/abstract=2835617

Gregory Sidak, The Antitrust Division’s Devaluation of Standard-Essential Patents, 104 GEO. L.J. ONLINE 48 (2015), https://georgetownlawjournal.org/articles/161/antitrust-division-sdevaluation-of/pdf

Joanna Tsai & Joshua D. Wright, Standard Setting, Intellectual Property Rights, and the Role of Antitrust in Regulating Incomplete Contracts, 80 ANTITRUST L.J. 157 (2015), https://ssrn.com/abstract=2467939

Joshua D. Wright, SSOs, FRAND, and Antitrust: Lessons from the Economics of Incomplete Contracts, 21 GEO. MASON L. REV. 791 (2014), http://www.georgemasonlawreview.org/wp-content/uploads/2014/06/Wright-WebsiteVersion.pdf

The Author

Judge Douglas Ginsburg

Judge Douglas Ginsburg was appointed to the United States Court of Appeals in November 1986, served as Chief Judge from July 16, 2001 until February 10, 2008, and took senior status on October 14, 2011. After receiving his BS from Cornell University in 1970, and his JD from the University of Chicago Law School in 1973, he clerked for Judge Carl McGowan on the D.C. Circuit and Justice Thurgood Marshall on the United States Supreme Court.

Thereafter, Judge Ginsburg was a professor at the Harvard Law School, the Deputy Assistant and then Assistant Attorney General for the Antitrust Division of the Department of Justice, as well as the Administrator of the Office of Information and Regulatory Affairs in the Office of Management and Budget. Concurrent with his service on the federal bench, Judge Ginsburg has taught at the University of Chicago Law School and the New York University School of Law. Judge Ginsburg is currently a Professor of Law at the Antonin Scalia Law School, George Mason University, and a visiting professor at the University College London, Faculty of Laws.

Judge Douglas Ginsburg

Judge Paul Michel became a private citizen on June 1, 2010 for the first time since he graduated from law school at the University of Virginia in 1966. Upon graduating from law school he became an Assistant District Attorney in Philadelphia, thus embarking upon the career of a public servant from 1966 to his retirement from the United States Court of Appeals for the Federal Circuit in 2010. Michel served on the Federal Circuit, which is the main patent appeals court in the United States, from 1988 to 2010, serving as Chief Judge from 2004 to 2010.

Judge Douglas Ginsburg

Ronald Cass is Dean Emeritus of Boston University School of Law, where he was Dean from 1990-2004, former Vice-Chairman and Commissioner of the U.S. International Trade Commission, Chairman of the Center for the Rule of Law (an independent, non-profit center of international scholars analyzing rule of law issues), and President of Cass & Associates, PC (a legal consultancy). Dean Cass also sits as an arbitrator or mediator for commercial, international, and intellectual property rights disputes, and is a United States member of the Panel of Conciliators of the International Centre for Settlement of Investment Disputes. In addition, he is a member of the Council of the Administrative Conference of the United States. He has received five presidential appointments, spanning Presidents Ronald Reagan to Barack Obama.

Judge Douglas Ginsburg

David Kappos is a Partner at Cravath, Swaine & Moore LLP in New York, NY. He was Under Secretary of Commerce and Director of the U.S. Patent and Trademark Office from August 2009 to January 2013. Prior to leading the USPTO, Mr. Kappos served as Vice President and Assistant General Counsel for Intellectual Property at IBM. For more information and to contact Mr. Kappos please visit his firm profile page.

Judge Douglas Ginsburg

Richard Epstein is the James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer at the University of Chicago Law School. Epstein started his legal career at the University of Southern California, where he taught from 1968 to 1972. He served as Interim Dean of the Law School from February to June 2001. He is also the Laurence A. Tisch Professor of Law at New York University, and the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution.

For more information please visit his Chicago Law School Profile Page.

Judge Douglas Ginsburg

Adam Mossoff is a Professor of Law at George Mason University. Professor Mossoff is a prolific scholar who writes on a variety of patent law issues. He is a co-founder of the Center for the Protection of Intellectual Property.

Judge Douglas Ginsburg

Joshua Wright is the Executive Director of the Global Antitrust Institute and holds a courtesy appointment in the Department of Economics. On January 1, 2013, the U.S. Senate unanimously confirmed Professor Wright as a member of the Federal Trade Commission (FTC), following his nomination by President Obama to that position. He rejoined Scalia Law School as a full-time member of the faculty in Fall 2015.

Judge Douglas Ginsburg

Jonathan Barnett is director of the USC Gould School of Law Media, Entertainment and Technology Law Program. Barnett specializes in intellectual property, contracts, antitrust, and corporate law. Barnett has published in the Harvard Law Review, Yale Law Journal, Journal of Legal Studies, Review of Law & Economics, Journal of Corporation Law and other scholarly journals.

Judge Douglas Ginsburg

David Teece is the Thomas W. Tusher Professor in Global Business and the Director of the Tusher Center on Intellectual Capital at the Haas School of Business at the University of California, Berkeley. He has published 6 books and over 200 articles in which he has analyzed the role of innovation and intellectual property in the competitive performance of the enterprise. He is also Founder and Chairman of Berkeley Research Group, LLC (‘BRG’), for which he also consults.

Judge Douglas Ginsburg

Justin Hurwitz joined the Nebraska College of Law in 2013. He is the Co-Director of the Space, Cyber, and Telecommunications Law Program, focusing on the Cyber and Telecommunications components of the program. Since joining the College of Law Faculty, his work has been cited by the FCC in its 2015 Open Internet Order, Judge Williams in his dissent to the DC Circuit's affirmance of that Order, and Senator John Thune at the introduction of the MOBILE NOW Act. He has testified before the Senate Commerce Committee on video regulation, participated in roundtable discussions hosted by the FCC, presented to the United States Army's 7th Signal Command on the technological challenges of cybersecurity regulation, and presented to German and Colombian competition regulators on topics including net neutrality and telecommunications competition policy.

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