NewYorkUniversity
LawReview
Current Issue

Volume 95, Number 4

October 2020

Antitrust Litigation of Strategic Patent Licensing

Ryan Fackler

Antitrust and patent law exist in permanent tension, with patentholders permitted to engage in conduct that would otherwise be plainly anticompetitive. Given the over five hundred billion dollars of annual R&D investment in the United States, and given the importance of R&D for corporations’ long-term economic profits, the broad deference given in antitrust law to patentee conduct is shocking. Continuing such deference misunderstands the purpose of antitrust law and undermines the purpose of patent law. This Note focuses on one area where this tension should be resolved in favor of increased antitrust enforcement: strategic patent licensing arrangements whereby a patentee transfers a share of its monopoly profits in order to control its competitor’s R&D. Such strategic arrangements can be used in 1) a duopoly where large competitors agree to divide an existing market; and 2) a platform technology where the patent holder encourages inventions that follow on, rather than compete with, an existing patent. This Note argues that anticompetitive strategic patent licensing is currently addressable under existing antitrust doctrine. By defining a market for research and development, regulators can successfully litigate against strategic licensing without needing to extend existing antitrust doctrine. Defining a market for research and development, moreover, connects the academic push for dynamic antitrust analysis into the existing static antitrust framework, allowing courts to gain experience with dynamic analysis in a more comfortable static setting. Lastly, while this Note is broadly theoretical, this is not by choice, but a byproduct of the broad-scale secrecy surrounding patent license agreements. Accordingly, this Note calls for the FTC to use existing statutory authority to begin investigating the real-world anticompetitive uses of strategic patent licensing.