Traditionally, antitrust law has served as both deterrent against and remedy for the monopolistic behavior known as patent holdup. Yet those who profit from patent holdup not only deny its existence but also until very recently wielded an enticing critique of the role of antitrust law in its deterrence—namely, that antitrust law (1) disincentivizes technological innovation and (2) incentivizes infringement.
After exploring patent holdup and why the modern and historical goals of antitrust law are well suited to combatting it, this Note provides direct and circumstantial evidence of the existence of patent holdup as a real-world problem. It also looks at how a sociopolitical power imbalance at work from 2017 until 2021 bolstered attempts to immunize standard-essential patents from antitrust scrutiny. Next, it covers why contract law alone is insufficient to remedy or deter patent holdup. Additionally, this Note debunks the misguided admonition that innovation will be deterred by antitrust scrutiny. Such admonition is premised on the notions that unqualified patent rights, such as the right to maximize prices and the right to exclude others from practicing one’s patent, are necessary incentives for innovation and that antitrust enforcement suppresses these incentives. This Note ends with a realistic view of the role of injunctions in the context of standard-essential patents and the conclusion that a recent governmental policy shift towards continuing to allow firms to seek injunctions while preserving the role of antitrust law is the only sensible approach to take.
Antitrust Deterrence of Patent Holdup: Refocusing on Competition as a Driver of Technological Innovation,
U.C. Irvine L. Rev.
Available at: https://scholarship.law.uci.edu/ucilr/vol12/iss3/11