Rescuing Antitrust’s Role in Patent Holdup
Standards, common platforms allowing products to work together, are ubiquitous in our economy. They allow consumers to know that their plugs will fit into outlets and that their phones will connect to wireless networks. But imagine that a company (1) has a patent needed to use a standard, (2) promises to license the patent on reasonable terms, and then (3) reverses course, seeking to block the product or charge an exorbitant price. In such a case, the users of the standard are stuck. They have invested in technologies based on the standard. And they may be forced to pay a price reflecting not the added value of the technology but the costs of switching to a new technology. In other words, they are subject to “patent holdup.”
Ending the Patenting Monopoly
For over 170 years, U.S. patent law has required that, prior to the assertion of any property rights in an invention, the inventor...
The PTO and the Market for Influence in Patent Law
statutory schemes go, the patent statute has been relatively stable
from 1952 to the present. In contrast to copyright law, where
Congress has taken a close—indeed at times intense—interest in the
details of the statutory scheme, legislative intervention
into the patent statute, when it has occurred, has been more limited
and narrower in scope. For many reasons,
however, patent law has been disequilibrating over time, and calls for
patent reform have been increasing in intensity. One of the many
factors contributing to this disequilibration in recent years has been
the ongoing emergence of the U.S. Patent and Trademark Office (PTO)
as a more robust institutional player actively seeking to influence
patent policy. The more prominent role played by the PTO is both
a cause and an effect of dissatisfaction with the state of patent law.
order to better understand some of the forces behind the moves toward
patent reform, we should examine not just who is demanding legal change,
but which institutions are able and willing to supply legal rules and
norms. Since 1952, Congress has left much of the market for supply-side
influence in patent law to the federal courts and, to a lesser degree,
to the PTO. In 1982, Congress consolidated appellate jurisdiction
over patent cases in one court, the U.S. Court of Appeals for the Federal
Circuit. Since then, lacking institutional competition from other
courts, the Federal Circuit has strengthened patent law. In the
process, the court has made this a more attractive area for institutions
to wield legal and policy influence.
The Use and Abuse of IP at the Birth of the Administrative State
Since its inception in the Progressive Era, the modern administrative state has functioned in tandem with the three intellectual...
Growing Pains in the Administrative State: The Patent Office’s Troubled Quest for Managerial Control
In the last ten years of our "information age," the workload of the Patent and Trademark Office (PTO) has grown...