Posted by Social Science Research Network
Patent Holdups Daryl Lim (The John Marshall Law School)
Abstract: Holdups have gained infamy from the image of knuckled-under implementers forced to pay patentees a premium because they are locked-in. Like shark attacks, holdups are real but their actual occurrence is sporadic enough to be treated as aberrations rather than a systematic failure in the patent system. A higher price may also reflect the premium associated with calculated convenience and certainty, a premium anyone who choses Uber’s taxi service rather than the public bus system knows. At the same time while holdups, like crimes, are not widespread, laws must still exist to deter them before they occur and address them when they do.
Patent ambushes are rare, less because of disclosure obligations and more due to the sting of possible antitrust enforcement. With FRAND disputes, patentees know injunctions are hard to come by and courts will likely map reward to technical contribution. Evidence showing intent can be useful here, as is direct or circumstantial evidence of harm. In the event negotiations fail, agreeing to submit the dispute to third party adjudication would be the clearest evidence of good faith. Harmful PAE conduct stems from features of the patent system, so the solution is to raise the bar of software patents, make it harder to initiate a suit, and punish those who bring frivolous suits.
Protagonists and antagonists exist on a spectrum that can appear flipped, depending on one ideological point of view, much like how one man’s terrorist and is another man’s freedom fighter. As with many things in life, the truth can be complicated and each choice come with its own set of tradeoffs. Deterring brinkmanship could deter innovators who would otherwise invest more heavily in new technologies or participate as intermediaries in facilitating licensing. Despite this complexity, the law must set down the ground rules for engagement. Those whose everyday lives depend on the law finding a proper balance between competing interests deserve no less.
Featured News
Mexico Moves Forward with Reform to Eliminate Key Regulators, Including Competition Watchdog
Aug 23, 2024 by
CPI
DOJ Sues RealPage for Alleged Rent-Fixing Scheme Using AI Software
Aug 23, 2024 by
CPI
Advance Auto Parts to Offload Worldpac for $1.5 Billion
Aug 22, 2024 by
CPI
Bronfman Ups Ante to $6 Billion in Paramount Battle, Skydance Deal at Risk
Aug 22, 2024 by
CPI
Google and California Strike Historic Deal to Fund Newsrooms Amid Controversy
Aug 22, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – State Attorneys General
Aug 22, 2024 by
CPI
CPI Talks… …With Attorney General Phil Weiser
Aug 22, 2024 by
CPI
The Bipartisan Miracle of State Antitrust Enforcement
Aug 22, 2024 by
Gwendolyn J. Lindsay Cooley
Recent Developments in State Antitrust Enforcement: Agriculture and Food Markets
Aug 22, 2024 by
Elizabeth R. Odette
State Attorneys General: Stewards of Consumer Health and Welfare
Aug 22, 2024 by
Brooke Howlett Lovrovich