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Journal of Competition Law and Economics Advance Access originally published online on March 2, 2009
Journal of Competition Law and Economics 2009 5(3):469-516; doi:10.1093/joclec/nhp006
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© The Author (2009). Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org

FEDERALISM, SUBSTANTIVE PREEMPTION, AND LIMITS ON ANTITRUST: AN APPLICATION TO PATENT HOLDUP

Bruce H. Kobayashi * and Joshua D. Wright **

Correspondence: E-mail: bkobayas{at}gmu.edu

In Credit Suisse v. Billing, the Court held that the securities law implicitly precludes the application of the antitrust laws to the conduct alleged in that case. The Court considered several factors, including the availability and competence of other laws to regulate unwanted behavior, and the potential that application of the antitrust laws would result in "unusually serious mistakes." This paper examines whether similar considerations suggest restraint when applying the antitrust laws to conduct that is normally regulated by state and other federal laws. In particular, we examine the use of the antitrust laws to regulate the problem of patent holdup of members of standard setting organizations. Although some have suggested that this conduct illustrates a gap in the current enforcement of the antitrust laws, our analysis finds that such conduct would be better evaluated under the federal patent laws and state contract laws.

* Professor of Law, George Mason University School of Law.

** Visiting Professor, University of Texas School of Law; Assistant Professor, George Mason University School of Law (on leave). E-mail: jwright{at}law.utexas.edu. We thank George Cary, Luke Froeb, John Golden, Willem Hoyng, Mark Lemley, Scott Kieff, Samson Vermont, Greg Werden, and conference participants at the George Mason/Microsoft Conference on the Law and Economics of Innovation and the Tilburg Law and Economics Center Workshop on Innovation, Intellectual Property and Competition Policy for valuable comments. We also are grateful to the Tilburg Law and Economics Center IIPC grant program for financial support. Aubrey Steumpfle and Brandy Wagstaff provided research assistance.


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