OECD Competition Committee Roundtable on “Licensing of IP Rights and Competition Law” (June 6, 2019)–Note by Koren W. Wong-Ervin

By Koren Wong-Ervin (Director of IP & Competition Policy at Qualcomm Incorporated)

This note provides an economic approach to antitrust analysis of differential pricing (here, used synonymously with “price discrimination”) and discriminatory refusals to license; grantbacks and cross-licenses; and no-challenge clauses. The analysis applies to both intellectual property rights (IPRs) in general, as well as to standard-essential patents (SEP) as to which the holder has made a commitment to license on fair, reasonable, and nondiscriminatory (FRAND) terms. This note also addresses the alleged “patent thicket” problem and the ex-ante incremental (or “inherent”) value approach to SEP valuation.

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