Applying antitrust law to combat “hold-up” attempts (involving demands for “anticompetitively excessive” royalties) or injunctive actions brought by standard essential patent (SEP) owners is inherently problematic, as explained by multiple scholars (see here and here, for example). Disputes regarding compensation to SEP holders are better handled in patent infringement and breach of contract lawsuits, and adding antitrust to the mix imposes unnecessary costs and may undermine involvement in standard setting and harm innovation. What’s more, as FTC Commissioner Maureen Ohlhausen and former FTC Commissioner Joshua Wright have pointed out (citing research), empirical evidence suggests there is no systematic problem with hold-up. Indeed, to the contrary, a recent empirical study by Professors from Stanford, Berkeley, and the University of the Andes, accepted for publication in the Journal of Competition Law and Economics, finds that SEP-reliant industries have the fastest quality-adjusted price declines in the U.S. economy – a result totally at odds with theories of SEP-related competitive harm. Thus, application of a cost-benefit approach that seeks to maximize the welfare benefits of antitrust enforcement strongly militates against continuing to pursue “SEP abuse” cases. Enforcers should instead focus on more traditional investigations that seek to ferret out conduct that is far more likely to be welfare-inimical, if they are truly concerned about maximizing consumer welfare.
But are the leaders at the U.S. Department of Justice Antitrust Division (DOJ) and the Federal Trade paying any attention? The most recent public reports are not encouraging.
In a very recent filing with the U.S. International Trade Commission (ITC), FTC Chairwoman Edith Ramirez stated that “the danger that bargaining conducted in the shadow of an [ITC] exclusion order will lead to patent hold-up is real.” (Comparable to injunctions, ITC exclusion orders preclude the importation of items that infringe U.S. patents. They are the only effective remedy the ITC can give for patent infringement, since the ITC cannot assess damages or royalties.) She thus argued that, before issuing an exclusion order, the ITC should require an SEP holder to show that the infringer is unwilling or unable to enter into a patent license on “fair, reasonable, and non-discriminatory” (FRAND) terms – a new and major burden on the vindication of patent rights. In justifying this burden, Chairwoman Ramirez pointed to Motorola’s allegedly excessive SEP royalty demands from Microsoft – $6-$8 per gaming console, as opposed to a federal district court finding that pennies per console was the appropriate amount. She also cited LSI Semiconductor’s demand for royalties that exceeded the selling price of Realtek’s standard-compliant product, whereas a federal district court found the appropriate royalty to be only .19% of the product’s selling price. But these two examples do not support Chairwoman Ramirez’s point – quite the contrary. The fact that high initial royalty requests subsequently are slashed by patent courts shows that the patent litigation system is working, not that antitrust enforcement is needed, or that a special burden of proof must be placed on SEP holders. Moreover, differences in bargaining positions are to be expected as part of the normal back-and-forth of bargaining. Indeed, if anything, the extremely modest judicial royalty assessments in these cases raise the concern that SEP holders are being undercompensated, not overcompensated.
A recent speech by DOJ Assistant Attorney General for Antitrust (AAG) William J. Baer, delivered at the International Bar Association’s Competition Conference, suffers from the same sort of misunderstanding as Chairman Ramirez’s ITC filing. Stating that “[h]old up concerns are real”, AAG Baer cited the two examples described by Chairwoman Ramirez. He also mentioned the fact that Innovatio requested a royalty rate of over $16 per smart tablet for its SEP portfolio, but was awarded a rate of less than 10 cents per unit by the court. While admitting that the implementers “proved victorious in court” in those cases, he asserted that “not every implementer has the wherewithal to litigate”, that “[s]ometimes implementers accede to licensors’ demands, fearing exclusion and costly litigation”, that “consumers can be harmed and innovation incentives are distorted”, and that therefore “[a] future of exciting new products built atop existing technology may be . . . deferred”. These theoretical concerns are belied by the lack of empirical support for hold-up, and are contradicted by the recent finding, previously noted, that SEP-reliant industries have the fastest quality-adjusted price declines in the U.S. economy. (In addition, the implementers of patented technology tend to be large corporations; AAG Baer’s assertion that some may not have “the wherewithal to litigate” is a bare proposition unsupported by empirical evidence or more nuanced analysis.) In short, DOJ, like FTC, is advancing an argument that undermines, rather than bolsters, the case for applying antitrust to SEP holders’ efforts to defend their patent rights.
Ideally the FTC and DOJ should reevaluate their recent obsession with allegedly abusive unilateral SEP behavior and refocus their attention on truly serious competitive problems. (Chairwoman Ramirez and AAG Baer are both outstanding and highly experienced lawyers who are well-versed in policy analysis; one would hope that they would be open to reconsidering current FTC and DOJ policy toward SEPs, in light of hard evidence.) Doing so would benefit consumer welfare and innovation – which are, after all, the goals that those important agencies are committed to promote.
Mr. Abbott, here you argue that SEPs are best handled by breach of contract suits — presumably implying enforcement of private contractual constraints imposed by standards bodies in adopting a patented technology — yet previously, you argued that the inclusion of any actual teeth to private contractual FRAND licensing commitments, itself, constituted a anti-trust violation! (See http://truthonthemarket.com/2015/02/04/ieee-patent-policy-change-would-undermine-property-rights-and-innovation/ and http://truthonthemarket.com/2015/03/24/undermining-investment-in-standard-setting-by-weakening-patents-how-a-recent-justice-department-business-review-letter-gets-things-wrong/ .)
Why should we believe that your seemingly new-found appreciation for private contractual constraints is anything more than lip service?
As for ITC, it seems to me that Ms. Ramirez’s concerns are right on point. If federal courts are to be the resort to ensure that SEPs actually adhere to FRAND licensing commitments, how does it make any rational policy sense to have a completely separate process, that will completely ignore such issues, short-circuit that federal court litigation process?
And furthermore, with the power of an ITC injunction in hand to force capitulation, what’s to stop an ill-behaved SEP licensor from demanding that a settlement license include a covenant not to challenge, precluding further litigation?