LAW & ECONOMICS: ANTITRUST ENFORCEMENT - ECONOMIC ANALYSIS - INTELLECTUAL PROPERTY - PATENTS - DISCRIMINATORY LICENSING

An economic approach to antitrust analysis of discriminatory licensing, grantbacks and cross-licenses, no-challenge clauses, and patent thickets

Antitrust enforcement involving intellectual property rights - particularly standard-essential patents - continues to receive significant global attention, including most recently by OECD member countries at the June 2019 OECD Competition Committee meetings. This Article provides an economic approach to antitrust analysis of discriminatory licensing, grantbacks and cross-licenses, no-challenge clauses, and so-called “patent thickets.” It also addresses the ex-ante incremental (or “inherent”) value approach for the valuation of standard-essential patents.

1. In June 2019, the Competition Committee of the Organisation for Economic Co-operation and Development (OECD) held a roundtable on “Licensing of IP Rights and Competition Law.” [1] The roundtable covered a wide variety of topics from refusals to license to so-called “patent thickets.” This article provides an economic approach to such conduct , specifically to differential pricing (here, used synonymously with “price discrimination”) and discriminatory refusals to license; grantbacks and cross-licenses; and no-challenge clauses. The analysis applies to both intellectual property rights (IPRs) in general, as well as to standard-essential patents (SEPs) as to which the holder has made a commitment to license on fair, reasonable, and nondiscriminatory (FRAND) terms. This note also addresses

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Authors

  • Compass Lexecon (Brussels)
  • Qualcomm (Washington)

Quotation

Jorge Padilla, Koren Wong-Ervin, An economic approach to antitrust analysis of discriminatory licensing, grantbacks and cross-licenses, no-challenge clauses, and patent thickets, September 2019, Concurrences Review N° 3-2019, Art. N° 90983, pp. 44-51

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