Patent Holdup, Patent Remedies, And Antitrust Responses‪.‬

I. INTRODUCTION In recent years, influential scholars, (1) practicing lawyers, (2) government officials, (3) government commissions, (4) enforcement agencies, (5) and courts (6) have all identified the phenomenon of "patent holdup" as a serious problem that may require various reforms to both patent and antitrust law. Within the last year or so, however, critics of this view have become increasingly vocal. In two recent papers, for example, Damien Geradin and his coauthors argue that, as an empirical matter, the frequency and magnitude of patent holdup costs are exaggerated. (7) A second line of attack, taken up in recent work by scholars including Einer Elhauge, (8) John Golden, (9) and J. Gregory Sidak, (10) focuses more on perceived theoretical vulnerabilities of the patent holdup literature--arguing, for example, that holdup is not necessarily inefficient, (11) and that neither patent law nor economic theory provides a baseline from which to evaluate whether patentees' royalty demands are so excessive as to constitute holdups. (12) Third, some of these same critics (and others) argue that the reforms sometimes proposed to remedy patent holdup-such as eliminating the presumption of injunctive relief in patent infringement cases, changing the method by which courts calculate reasonable royalties, and permitting standard setting organizations (SSOs) (13) to engage in collective bargaining with member patent owners over proposed licensing terms-threaten worse harms than the harms they would deter. (14)