Santa Clara High Technology Law Journal Volume 34 | Issue 2 Article 1 1-3-2018 Patent "Trespass" and the Royalty Gap: Exploring the Nature and Impact of Patent Holdout Bowman Heiden Nicolas Petit Follow this and additional works at: http://digitalcommons.law.scu.edu/chtlj Part of the Intellectual Property Law Commons, and the Science and Technology Law Commons Recommended Citation Bowman Heiden and Nicolas Petit, Patent "Trespass" and the Royalty Gap: Exploring the Nature and Impact of Patent Holdout, 34 Santa Clara High Tech. L.J. 179 (). Available at: http://digitalcommons.law.scu.edu/chtlj/vol34/iss2/1 This Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara High Technology Law Journal by an authorized editor of Santa Clara Law Digital Commons. For more information, please contact
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[email protected]. PATENT “TRESPASS” AND THE ROYALTY GAP: EXPLORING THE NATURE AND IMPACT OF PATENT HOLDOUT Bowman Heiden† & Nicolas Petit‡ This paper studies a problem known as “patent holdout.” Part I reviews the literature on holdout, with a specific emphasis on patents. The literature shows that the ordinary concept of holdout refers to the non-transacting conduct of a property owner, and that “patent trespass” is a better characterization for technology implementers’ attempt to evade concluding licensing agreements with patent owners. Part II proposes a definition and illustrations of patent trespass, relying on the qualitative data collected during interviews with industry stakeholders as well as on an analysis of U.S.