Kobayashi & Wright on Antitrust Limits, Federalism and Patent Holdup

I’ve posted to SSRN my new article (co-authored by my colleague Bruce Kobayashi), Federalism, Substantive Preemption, and Limits on Antitrust: An Application to Patent Holdup. We presented an earlier version of our analysis at the George Mason/ Microsoft Conference on the Law and Economics of Innovation and benefited significantly from comments from the discussants and participants. We take an approach grounded in the economics of federalism and recent Supreme Court antitrust jurisprudence in arguing for substantive limits on antitrust enforcement of patent holdup in favor of reliance on patent law as well as state common law. Along the way we discuss recent cases and enforcement actions involving patent holdup, including the D.C. Circuit’s decision in Rambus, Broadcom, and N-Data. If you’re a reader interested in patent holdup and related issues, please give the paper a read. Comments welcome (here or email me).

Read the full piece here.