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C R I T E R I O N J O U R N a L O N I N N O V a T I O N THE C RITERION J OURNAL ON I NNOVAT I ON Vol. 3 E E E 2018 Is Patent Holdup a Hoax? J. Gregory Sidak* Many economists—and perhaps even a fair number of judges and lawyers— would agree that a sound economic theory can usefully inform the legal analysis of a complex commercial dispute. But how likely is it that knowl- edge accrues in the opposite direction? Can the expediency of legal advocacy serendipitously inspire a breakthrough in economic understanding? Can a client’s desired outcome in a consequential legal dispute plausibly motivate a novel economic theory that genuinely advances science? Perhaps so, if one embraces a new interpretation of Oscar Wilde’s notion of “the triumph of hope over experience.”1 But only perhaps. In 2007, two law review articles debuted the patent-holdup conjecture, which has since become de rigueur for any implementer of an industry stan- dard to allege against a holder of standard-essential patents (SEPs) when the parties dispute whether the SEP holder has offered to license those patents on legitimately fair, reasonable, and nondiscriminatory (FRAND) terms. The patent-holdup conjecture quickly became a big business. The first article2 was written by Mark Lemley, a distinguished law professor at Stanford and (at the time) of counsel to the San Francisco litigation boutique Keker & Van Nest, and by Carl Shapiro, an equally distinguished economics professor at Berkeley and a senior consultant to Charles River Associates (a publicly * Chairman, Criterion Economics, Washington, D.C. Email: [email protected]. I thank Joseph Linfield, Douglas Maggs, Urška Petrovčič, Marc Richardson, Melinda Ledden Sidak, Jeremy Skog, Blount Stewart, Han Tran, and Andrew Vassallo for helpful research and comments. I have served as a consulting or testifying economic expert in disputes or negotiations concerning the licensing of SEPs on FRAND or RAND terms. Portions of this article reiterate themes that I have expressed in nonconfiden- tial passages of expert reports and testimony in those matters; however, I do not rely on any confidential business information (CBI) from any proceeding. No client or third party has commissioned or funded or exercised editorial control over this article. The views expressed here are solely my own. Copyright 2018 by J. Gregory Sidak. All rights reserved. 1 Wilde might have been riffing on Samuel Johnson.See, e.g., Ken Coughlin, Letter to the Editor, Oscar Wilde’s Debt to Samuel Johnson, N.Y. Times, Oct. 29, 2006. 2 Mark A. Lemley & Carl Shapiro, Patent Holdup and Royalty Stacking, 85 Tex. L. Rev. 1991, 1991 n.* (2007). 401 402 The Criterion Journal on Innovation [Vol. 3:401 traded company formally named CRA International).3 The second article was written by Shapiro, along with economists Joseph Farrell of Berkeley and (at the time) CRA, and John Hayes and Theresa Sullivan, both of CRA.4 From its inception, the patent-holdup conjecture, though ostensibly economic in character and predominantly articulated by economists, was not a theory to be debated by academic economists, as confirmed by the fact that the authors chose to place these two seminal articles in law reviews rather than economics journals. Instead, its creators seemed to cultivate the patent-holdup conjecture for consumption by lawyers, judges, and antitrust 3 Both Lemley and Shapiro started their own firms. Lemley subsequently co-founded the Durie Tangri law firm in San Francisco. Shapiro, after the first of two stints as Deputy Assistant Attorney General for Economic Analysis (chief economist) in the Antitrust Division of the U.S. Department of Justice, co-founded the Tilden Group with Michael Katz, another Berkeley economics professor, which they sold two years later, in 1998, to CRA for $9.6 million in cash and common stock. Charles River Associates Inc., Annual Report for the Fiscal Year Ended November 28, 1998 (SEC Form 10-K), at 4 (filed Feb. 23, 1999). As a consultant with CRA, Shapiro has worked on many notable antitrust matters. He played a highly publicized role as Intel’s expert economic witness in the Federal Trade Commission’s 1999 monopoliza- tion case against the company. See, e.g., Reuters Security, Taking the Stand at Antitrust II, Wired, Feb. 22, 1999, https://www.wired.com/1999/02/taking-the-stand-at-antitrust-ii/. Shapiro subsequently wrote about the experience in Carl Shapiro, Technology Cross-Licensing Practices: FTC v. Intel (1999), in The Antitrust Revolution: Economics, Competition, and Policy 350 (John E. Kwoka, Jr. & Lawrence J. White eds., Oxford Univ. Press 4th ed. 2004). Founded in 1965, CRA traces its roots to MIT economist Franklin Fisher and is widely regarded as one of the two preeminent big-litigation consulting firms in the United States, if not the world. See, e.g., CRA International, Inc., Annual Report for the Fiscal Year Ended December 30, 2017 (SEC Form 10-K), at 4 (filed Mar. 12, 2018);Franklin M. Fisher Biography, U.S. Dep’t of Justice, Antitrust Div., https://www. justice.gov/atr/franklin-m-fisher-biography (updated June 25, 2015). 4 Joseph Farrell, John Hayes, Carl Shapiro & Theresa Sullivan, Standard Setting, Patents, and Hold-Up: A Troublesome Mix, 74 Antitrust L.J. 603 (2007). Farrell, Hayes, Shapiro, and Sullivan specifically discuss the patent-holdup conjecture in the context of standards setting, whereas Lemley and Shapiro, supra note 2, discuss the conjecture more generally and mention standards setting as merely one application of their theory. Unlike Shapiro, Farrell appears not to have published subsequent articles concerning the pat- ent-holdup conjecture since 2007. In three subsequent works, he has briefly mentioned the patent-holdup conjecture while discussing intellectual property and standards. See Joseph Farrell & Carl Shapiro, How Strong Are Weak Patents?, 98 Am. Econ. Rev. 1347, 1362 (2008) (arguing that weak patents “can create a danger of patent hold-up”); Joseph Farrell, Intellectual Property as a Bargaining Environment, in 9 Innovation Policy and the Economy 39, 40–41, 46–47 (Josh Lerner & Scott Stern eds., Univ. of Chicago Press 2009) (arguing that patent holdup acts as a barrier to efficient license negotiation and recommending policy responses); Joseph Farrell & Timothy Simcoe, Four Paths to Compatibility, in Oxford Handbook of the Digital Economy 34, 44 (Martin Peitz & Joel Waldfogel eds., Oxford Univ. Press 2012) (arguing that SSOs require patent holders to disclose essential patents and license them on RAND terms for the purpose of mitigating the risk of patent holdup). In the winter of 2013, Samsung publicly disclosed Farrell as its expert witness in two patent-infringement investigations before the U.S. International Trade Commission (ITC) that concerned FRAND issues. See Respondents’ Initial Expert Disclosure at 12, Certain Electronic Devices, Including Certain Wireless Communication Devices, Tablet Computers, Media Players, and Televisions, and Components Thereof, Inv. No. 337-TA-862 (USITC Feb. 11, 2013); Complainants Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC’s Identification of Expert Witnesses at 10, Certain Wireless Communication Equipment and Articles Therein, Inv. No. 337-TA-866 (USITC Mar. 26, 2013). By January 2013, Farrell had moved to Bates White, where he is a partner. See Press Release, Bates White Economic Consulting, Joseph Farrell, Professor of Economics at University of California, Berkeley, and Former Director of the Bureau of Economics at the Federal Trade Commission, Joins Bates White Economic Consulting (Jan. 3, 2013), https://www.bateswhite.com/news-32.html; see also Joseph Farrell, DPhil—Partner, Bates White Econ. Consulting, https://www.bateswhite.com/profession- als-Joseph-Farrell.html. For the record, Ericsson—the party adverse to Samsung in those two ITC investi- gations—disclosed me as one of its expert economics witnesses in both the 862 and 866 investigations. 2018] Is Patent Holdup a Hoax? 403 enforcers. The two seminal articles were co-authored by eminent scholars at Berkeley and Stanford whose professional reputations and experience, as legal counsel or as consulting or testifying economic experts, had enabled them over time to speak with authority on consequential legal disputes concerning intellectual property. It is therefore not surprising that four west-coast technology titans— Apple, Cisco, Intel, and Microsoft—considered it meritorious to fund the article by Lemley and Shapiro.5 Since 2007, those four firms have publicly advocated policies and interpretations of legal doctrines that would lower FRAND royalties for SEPs.6 Similarly, since 2007, CRA and its affiliated academics have continued to champion the patent-holdup conjecture, both in the United States and abroad.7 By itself, the fact that the article by Lemley and Shapiro elicited the interest and financial support of Apple, Cisco, Intel, and Microsoft surely does not invalidate the patent-holdup conjecture. If anything, one should construe that corporate support as a market signal of quality and of the real-world relevance of the topic that Lemley and Shapiro committed to address. The corporate sponsorship indicates that leading technology 5 Lemley & Shapiro, Patent Holdup and Royalty Stacking, supra note 2, at 1991 n.*. The authors acknowl- edged two additional funders: Micron Technology and SAP. Id. These two companies have been less vocal about the patent-holdup conjecture since 2007 than the four other companies. The 2007 article by Farrell, Hayes, Shapiro, and Sullivan, supra note 4, does not contain an analogous disclosure of corporate sponsorship. I therefore proceed on the assumption that neither the authors nor Charles River Associates received funding from any CRA client to support the writing of that article. 6 See, e.g., Letter from Ira Blumberg, Vice President of Intellectual Prop., Lenovo Grp. Ltd., et al. to Howard E. Michel, President & CEO, IEEE, and Bruce Kraemer, President, IEEE-SA & Dir., IEEE (Jan. 30, 2015) (signed by representatives of Lenovo Group Ltd., Cisco Systems, Inc., Sceptre Inc., PacTech Law, P.C., Intel Corp., Samsung Electronics Co.
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