Tuesday, October 28, 2014
|In This Issue
Implementing the FRAND Commitment Janusz Ordover and Allan Shampine examine the economic goals of FRAND terms for licensing standard essential patents and how FRAND commitments should be enforced to achieve those goals and avoid anticompetitive effects.
Enjoining Injunctions: The Case Against Antitrust Liability for Standard Essential Patent Holders Who Seek Injunctions Douglas Ginsburg, Taylor Owings, and Joshua Wright challenge the use of antitrust law to prohibit standard essential patent holders from pursuing injunctions against potential infringers. They argue that antitrust enforcement is unnecessary to protect consumer welfare in these matters and may discourage participation by patent holders in procompetitive standard setting.
Abuse of Dominance by Patentees: A Pro-Innovation Perspective Alden Abbott surveys the evolution of U.S. antitrust law's approach to the interface with patent rights, discusses academic research on the economic benefits of a strong patent system, and argues against expanded antitrust enforcement based on novel theories, such as limiting returns on intellectual property rights.
Actavis and Error Costs: A Reply to Critics Aaron Edlin, Scott Hemphill, Herbert Hovenkamp, and Carl Shapiro defend their previously published analysis of the Actavis decision and argue that their proposed framework is supported by both the Supreme Court's decision and economic theory.
Nancy Rose, New Deputy Assistant Attorney General for Economics Elizabeth Bailey and Tracy Orcholski review the published work of the Antitrust Division's new chief economist. They report that Rose's research, which is principally in the airline and electricity industries, focuses on data-driven analysis of how firms adjust their behavior, including with respect to non-price strategic variables, in response to government regulation.
Paper Trail: Working Papers and Recent Scholarship Bill Page reviews a paper by Michael Carrier proposing, in light of the Actavis decision, an approach for assessing whether a reverse payment to settle pharmaceutical patent litigation is large enough to indicate an anticompetitive effect of the settlement. Carrier focuses on whether the payment benefits the generic manufacturer challenging a patent more than if the plaintiff had won its lawsuit.