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Abstract

Policy approaches to the enforcement and licensing of standard-essential patents (SEPs) in wireless communications markets reflect the competing interests of entities that specialize in the innovation or implementation segments of the technology supply chain. This same principle can anticipate the policy preferences of national jurisdictions that specialize in the chip-design or device-production segments of the global technology supply chain. Consistent with this principle, the legal treatment of SEP licensing and enforcement by regulators and courts in the People’s Republic of China reflects a strategic effort to deploy competition and patent law to reduce input costs for domestic device producers that rely on wireless communications technology held by foreign chip suppliers. This mercantilist use of antitrust law has derived its intellectual foundation from patent holdup and royalty stacking models of market failure developed principally by U.S. scholars and has borrowed excessive pricing, essential facility, and other doctrines from E.U. competition and U.S. antitrust law, which have then been applied expansively by Chinese regulators and courts in service of geopolitical objectives. While this strategy promotes the short-term interests of a national economy that specializes in the implementation segments of the technology supply chain, it is unlikely to promote the global economy’s longer-term interest in preserving the funding and transactional structures that have supported innovation and commercialization in the wireless technology ecosystem.

Abstract

Many academics and government officials claim that owners of patents on standardized technologies, such as 5G or Wi-Fi, cannot obtain injunctions as a remedy for infringement of their patents. They believe this is mandated in the contractual commitment by an owner of a standard essential patent (SEP) to license on fair, reasonable, and non-discriminatory (FRAND) terms. This conventional wisdom is profoundly mistaken. FRAND agreements do not prohibit SEP owners from receiving injunctions for continuing infringement of their patents. One of the oldest, exemplary FRAND agreements evinces this basic legal truth: the FRAND commitment set forth by the European Telecommunications Standards Institute (ETSI). According to the plain text, contractual context, and historical provenance of the ETSI FRAND commitment, it is clear that it does not prohibit injunctions as remedies for infringement of SEPs. In recent years, this has been confirmed by courts in jurisdictions throughout the world repeatedly issuing injunctions to SEP owners under the ETSI FRAND commitment. Unfortunately, the mistaken belief that FRAND prohibits injunctions persists among American academics and courts. It is important to clarify the legal requirements of FRAND and the availability of injunctive relief for SEP owners because normative theories or economic models about SEP licensing and litigation should be based in legal facts. Otherwise, incorrect claims about FRAND allegedly prohibiting injunctive remedies will continue to proliferate among academics and officials, provoking unnecessary litigation and unjustified agency actions by antitrust officials. These legal errors impose costs on innovators and implementers alike, which undermine the efficient growth in the global innovation economy.

Abstract

The EU Commission’s recent proposal for a regulation on standard essential patents (SEPs) envisages a radical overhaul of the current framework, introducing an essentiality check system, a conciliation process for fair, reasonable and non-discriminatory (FRAND) terms, and a mechanism to determine a reasonable aggregate royalty. However, both the economic justification and the approach endorsed by the proposal are questionable. Indeed, on one hand, there is no evidence of a market failure to justify the initiative and, in addition, the provisions appear to be one-sided, apparently being aimed only at addressing a hold-up problem and pursuing a value-distribution goal from SEP owners to implementers. Accordingly, this paper views the proposal critically, arguing that it departs from the well-established meaning and rationale of FRAND commitments by disregarding hold-out problems, and it jeopardises the suitability of SEPs to serve as valuable financial collateral, thereby endangering future investments in innovation.

Dear Chairman Sanders, Ranking Member Cassidy, Chairman Smith, and Ranking Member Neal:

As former judges, former government officials, and scholars who are experts in patent law, healthcare policy, or both, we write to express our concerns about lobbying efforts for the government to impose price controls on patented drugs. Some activists and academics have written to Congress and to agency officials arguing that existing laws are “tools” for the government to impose price controls on patented drugs to lower drug prices.[1] Their arguments mischaracterize these statutes by inaccurately claiming that Congress has endorsed the imposition of price controls on patented drugs. It has not.

Drug pricing presents a multi-dimensional policy issue because the U.S. healthcare system comprises a complex, intermingled system of federal and state laws and regulations, as well as a myriad of equally complex and intermingled set of public and private institutions. Yet, activists and others inaccurately reduce the causes of drug prices to a single issue: patents. They argue that the federal government can “lower drug prices by breaking patent barriers,”[2] and they claim that two statutes can be used to achieve this policy goal: the Bayh-Dole Act and 28 U.S.C. § 1498.

Neither the Bayh-Dole Act nor § 1498 are price-control statutes, and thus they do not authorize the federal government to impose price controls on patents. This is clear by their plain legal text, as well as by their consistent interpretation by courts and agencies. The Bayh-Dole Act promotes the commercialization of patented inventions that may result from government funding of research, and § 1498 secures patent-owners in obtaining compensation for unauthorized uses of their property rights by the government. Neither law says anything about drug prices. If the government used either law to impose price controls on patented drugs, this would conflict with the clear purpose of these statutes. It would also represent an unprecedented and fundamental change in U.S. patent law. From 1790 through the twentieth century, Congress rejected bills that would impose compulsory licensing on patents.[3] The calls to use the Bayh-Dole Act or § 1498 for similar purposes fundamentally are at odds with these statutes and threaten to undermine the U.S. patent system’s historic success as a driver of U.S. global leadership in biopharmaceutical innovation.

This letter explains why neither the Bayh-Dole Act nor § 1498 can be used to break patents to impose price controls on drugs. First, it sets forth the proven success of the patent system as a driver of innovation in healthcare, which is the framework to evaluate the argument to “lower drug prices by breaking patent barriers.”[4] This argument threatens to undermine the legal system that has saved lives and improved everyone’s quality of life. It then describes the Bayh-Dole Act and § 1498, explaining how neither authorizes price controls on patented drugs. The policy argument seeking to impose price controls on drugs contradicts the clear text and purpose of these statutes.

Read the full letter here.

[1] See Letter to Senator Elizabeth Warren from Amy Kapczynski, Aaron S. Kesselheim, et al., at 1 (Apr. 20, 2022), https://tinyurl.com/yt62wt4t. Professor Kapczynski and Professor Kesselheim are the co-authors of this letter, which is based on their articles, and thus this letter is identified as the “Kapczynski-Kesselheim Letter.”

[2] Id. at 8

[3] See, e.g., Bruce W. Bugbee, Genesis of American Patent and Copyright Law 143-44 (1967) (discussing the rejection of a Senate proposal for a compulsory licensing requirement in the bill that eventually became the Patent Act of 1790); Kali Murray, Constitutional Patent Law: Principles and Institutions, 93 Nebraska Law Review 901, 935-37 (2015) (discussing 1912 bill that imposed compulsory licensing on patent owners who are not manufacturing a patented invention, which received twenty-seven days of hearings, but was not enacted into law).

[4] Kapczynski-Kesselheim Letter, supra note 1, at 8.

Abstract

This paper builds on previous work addressing the problem of “hold-out” in the licensing of standards essential patents (SEPs) in mobile cellular communications technology. Given the pervasiveness of mobile technology, and the need to maintain continued innovation in such technology, the robustness of the licensing marketplace for patents is an economically important issue. We show how the ease with which implementers of such technology such as smartphone makers can use the technology without having agreed to licenses is a major structural factor that shifts bargaining power in licence negotiations towards the implementers. Together with frictions in the enforcement process, and the increasing propensity to resist licensing by new groups of implementers (i.e., “hold out”) we explain why there is an elevated risk that the licensing marketplace may produce outcomes that are inconsistent with the “balance” that Standards Development Organizations (“SDOs”) such as ETSI have sought out. The ability of the licensing marketplace to strike this balance is critical to the continued robustness of the wireless ecosystem. We explain that there is a risk that the SEP holders’ obligation to be prepared to make licences available on Fair, Reasonable and Non-Discriminatory (FRAND) terms can be used to “bound” the worst case scenario for an implementer– i.e., that it can never do worse than receiving the “FRAND” royalty. We discuss how courts and policymakers should sensibly interpret the bounds and limits of the FRAND commitment, in order to respect the overarching goals of “balance” and robust innovation in the ecosystem.

Abstract

How should a technology firm adjust resource allocation between external and internal R&D in response to stronger patent protection? External R&D provides the firm with another channel of earnings to mitigate diminishing returns to internal R&D, but yields the firm only a fraction of the additional profit generated. Theoretically, if the marginal return to external R&D diminishes more slowly than the marginal return to internal R&D, the firm should increase external R&D more than internal R&D. Exploiting regional differences in the strengthening of patent protection due to the U.S. Court of Appeals for the Federal Circuit (CAFC), we find that the CAFC was associated with 35 percent more external R&D vis-a-vis 20 percent more internal R&D. The difference was more pronounced in industries where patents were less effective in the appropriability of product inventions and among firms more specialized in technology.

The Evolution of FTC Antitrust Enforcement – Highlights of Its Origins and Major Trends

1910-1914 – Creation and Launch

The election of 1912, which led to the creation of the Federal Trade Commission (FTC), occurred at the apex of the Progressive Era. Since antebellum times, Grover Cleveland had been the only Democrat elected as president. But a Democratic landslide in the 1910 midterms during the Taft administration substantially reduced the Republicans’ Senate majority and gave the Democrats a huge majority in the House, signaling a major political shift. Spurred by progressive concern that Standard Oil—decided in 1911—signaled judicial leniency toward trusts and monopolies, government control of big business became the leading issue of the 1912 campaign. Both the progressive Democrats and the so-called Republican “insurgents” favored stronger antitrust laws, reduced hours and an antitrust exemption for workers, and closer federal regulation of banking and currency, among other items. Progressive agendas led both Woodrow Wilson’s “New Freedom” platform and the “New Nationalism” of former Republican President Theodore Roosevelt and his Bull Moose Party.

Read the full piece here.

Brief for Amici Curiae International Center For Law & Economics and 11 Scholars of Antitrust Law and Economics in Support of Defendants’ Opposition to Plaintiffs’ Motion for a Preliminary Injunction

Amici Curiae respectfully submit this brief in support of Defendants’ Opposition to Plaintiffs’ Motion for a Preliminary Injunction (Dkt. 130).[1]

INTEREST OF AMICI CURIAE

The International Center for Law & Economics (“ICLE”) is a nonprofit, nonpartisan, global research and policy center aimed at building the intellectual foundations for sensible, economically grounded policy. ICLE promotes the use of law and economics methodologies, and economic findings, to inform public policy. ICLE has longstanding expertise in antitrust law, and a strong interest in the proper development of antitrust jurisprudence. ICLE thus routinely files amicus briefs in cases, like this one, presenting important issues of antitrust law. ICLE is joined
by 11 scholars of antitrust law and economics (listed in the Appendix to this brief ).

INTRODUCTION

Section 7 of the Clayton Act prohibits mergers where “the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.” 15 U.S.C. § 18. Congress used the word “may” to “indicate that its concern was with probabilities, not certainties.” Brown Shoe Co. v. United States, 370 U.S. 294, 323 (1962). The government thus need not wait for anticompetitive conduct to occur before seeking relief. Id. at 317-18. Still, the government must show a “ ‘reasonable likelihood ’ of a substantial lessening of competition in the relevant market.” United States v. Marine Bancorp., 418 U.S. 602, 622 (1974) (emphasis added).

But—as Yogi Berra might have paraphrased Nils Bohr—it can be “tough to make predictions, especially about the future.” Enforcers and courts thus traditionally approach merger control with caution. Deciding whether to block a merger requires making predictions about its likely impact on competition and consumers. That requires evaluating both the likely future state of the market given the transaction and the “but for” world in which it does not take place, often with limited (but nonetheless sufficiently substantial) information and imperfect (but ideally well-tested) tools.

For decades, courts and enforcers have looked to economic principles to develop a set of considerations to inform and constrain such decision-making. Three of them are especially relevant here: the distinctions among horizontal, vertical, and conglomerate mergers; the distinction between structural and behavioral threats to competition; and the distinction between structural and behavioral remedies. In challenging Amgen’s proposed acquisition of Horizon, the Federal Trade Commission elides all three established distinctions. It instead seeks to block a likely procompetitive conglomerate merger based on harms supposed to arise from a chain of conjectured post-transaction events, where each link in the chain is highly speculative. It is unlikely that they will all come to pass and cause the competitive harm the FTC posits. There is no sound economic basis for blocking the merger here and forfeiting its likely procompetitive benefits. Because the antitrust theory alleged in the complaint lacks merit, the FTC cannot establish the “likelihood of success” necessary for a preliminary injunction. FTC v. Great Lakes Chem. Corp., 528 F. Supp. 84, 86 (N.D. Ill. 1981).

[1] No party’s counsel authored any part of this brief, and no person other than amici and their counsel made a monetary contribution to fund its preparation or submission.

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.