Incentive effects from different approaches to holdup mitigation surrounding patent remedies and standard-setting organizations

Journal of Competition Law and Economics

Volumn 9, Issue 4, 2013, Pages 1091-1123

  Scott Kieff, F ^a,b   Layne Farrar, Anne ^c  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

^b STANFORD UNIVERSITY   (United States)

^c CHARLES RIVER ASSOCIATES   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84888881603     PISSN: 17446414     EISSN: 17446422     Source Type: Journal    
DOI: 10.1093/joclec/nht030     Document Type: Article

References (103)

1. Richard A. Epstein, F. Scott Kieff & Daniel F. Spulber, The FTC, IP, and SSOs: Government Hold-Up Replacing Private Coordination, 8 J. COMPETITION L. & ECON. 19 (2012) (collecting sources)
2. Anne Layne-Farrar, Gerard Llobet & A. Jorge Padilla, Payments and Participation: The Incentives to Join Cooperative Standard-Setting Efforts, 23 J. ECON. & MGMT. STRATEGY (forthcoming 2014).
3. Part IV.B (on reverse patent holdup, also called "holdout" and "licensee holdup")
4. FED. TRADE COMM'N, THE EVOLVING IP MARKETPLACE: ALIGNING PATENT NOTICE AND REMEDIES WITH COMPETITION 28, 234-35 (Mar. 2011) [hereinafter FTC Report].
5. Apple, Inc. v. Motorola, Inc., 869 F. Supp. 2d 901 (N.D. Ill. June 22, 2012).
6. Richard Posner, Capitalism-Posner, THE BECKER-POSNER BLOG (June 3, 2012), http:// www.becker-posner-blog.com; Richard Posner, Do Patent and Copyright Law Restriction Competition and Creativity Excessively? Posner
7. Richard Posner, Do Patent and Copyright Law Restriction Competition and Creativity Excessively? Posner
8. THE BECKER-POSNER BLOG (Sept. 30, 2012), http:// www.becker-posner-blog.com.
9. Richard A. Posner, Why There Are Too Many Patents in America, THE ATLANTIC, July 12, 2012.
10. Richard A. Epstein, Richard Posner Gets ItWrong, DEFINING IDEAS, July 31, 2012.
11. Mark A. Lemley & Carl Shapiro, Reply: Patent Holdup and Royalty Stacking, 85
12. TEX. L. REV. 2163 (2007) (arguing that the holdup problem for patents is due to two factors: the large number of patent claims determined to be invalid or non-infringed and the ability for patent infringement remedies to impact non-infringing components of products adjudicated to have infringing components).
13. OLIVER E. WILLIAMSON, THE ECONOMIC INSTITUTIONS OF CAPITALISM 52-56 (Free Press 1985) (reviewing literature and explaining that "[a]t least four different types of asset specificity are usefully distinguished: site specificity; physical asset specificity; human asset specificity; and dedicated assets . . . [and that t]he importance of asset specificity to transaction cost economics is difficult to exaggerate").
14. OLIVER E. WILLIAMSON, THE MECHANISMS OF GOVERNANCE 378 (Oxford Univ. Press 1996) [hereinafter MECHANISMS OF GOVERNANCE]
15. Stephen H. Haber & Victor A. Menaldo, Rainfall, Human Capital, and Democracy 21 (2011), available at http://ssrn.com/abstract=1667332
16. (citing as classic cases bananas (STACY MAY & GALO PLAZA, THE UNITED FRUIT COMPANY IN LATIN AMERICA (Nat'l Planning Ass'n 1958)) and sugar (Hans Binswanger & Mark Rosenzweig, Behavioral and Material Determinants of Production Relations in Agriculture, 22 J. DEV. STUD. 503 (1986)
17. ALAN DYE, CUBAN SUGAR IN THE AGE OF MASS PRODUCTION: TECHNOLOGY AND THE ECONOMICS OF THE SUGAR CENTRAL, 1899-1929 (Stanford Univ. Press 1998)
18. While the GM-Fisher Body story is often cited as the canonical example of vertical integration needed to avoid holdup, that view of the story has been proven to be factually inaccurate.
19. Ronald Coase, The Conduct of Economics: The Example of Fisher Body and General Motors, 15 J. ECON. & MGMT. STRATEGY 255 (2006).
20. Ramon Casadesus-Masanell & Daniel F. Spulber, The Fable of Fisher Body, 43 J.L. & ECON. 67 (2000). Holdup may even have been exacerbated by the integration of these two firms. As explained by Freeland, [t]he GM-Fisher case is . . . the most widely cited example of vertical integration reducing problems of physical and human asset specificity, and it serves as an empirical cornerstone for hold-up explanations of unified ownership. . . . [But] while holdup was not an issue prior to integration, the Fisher brothers successfully held up GM after they became employees; far from reducing opportunistic behavior, vertical integration increased GM's vulnerability to rent-seeking behavior.
21. Robert F. Freeland, Creating Holdup Through Vertical Integration: Fisher Body Revisited, 43 J.L. & ECON. 33 (2000).
22. Stephen H. Haber & Victor A. Menaldo, Rainfall, Human Capital, and Democracy 3 (Working Paper Draft Apr. 2, 2011) (on file with authors) ("It is, of course, possible to grow food in the tropics-but what can be grown either has very low degrees of storability (e.g. tree crops, such as bananas) or is characterized by extremely large scale economies in production (e.g. sugar cane)."). Indeed, the vertical integration component of the large-scale economies in production of sugar cane may itself be caused by the degree of storability and the resulting need to avoid holdup.
23. Robert A. Read, The Banana Industry: Oligopoly and Barriers to Entry, in 10 TRANSNATIONAL CORPORATIONS AND THE EXPLOITATION OF NATURAL RESOURCES 198 (Routledge 1993).
24. Patentees may still be subject to other patent holdup risks-sometimes called "reverse patent holdup" or a type of "holdout"-within a standard-setting organization (SSO), if manufacturers hold themselves out of concluding deals with patentees while demanding that these innovators, who have already sunk the costs of inventing and patenting their technology for use in a standard, offer low royalty terms as a condition for supporting inclusion of that patented technology in the standard. By holding out for unreasonable deal terms, these potential infringers can cause a holdup problem in the opposite direction: against the patentees and all those who have invested in the patentee, like other licensees.
25. Anne Layne-Farrar, Gerard Llobet & A. Jorge Padilla, Preventing Patent Holdup: An Economic Assessment of Ex Ante Licensing Negotiations in Standard Setting, 37 Aipla Q.J. 445 (2009) (explaining how an SSO's voting rules can grant licensees bargaining power that can lead to holdup of patent holders).
26. Because the party causing this type of holdup is the one who is a potential licensee of the patent, this sub-category of holdup might also be called "licensee holdup."
27. When ex ante investments can be contracted over, the holdup problem has been shown to vanish.
28. Vincent P. Crawford, Long-Term Relationships Governed by Short-Term Contracts, 78 AM. ECON. REV. 485 (1988)
29. Drew Fudenberg, Bengt Holmstrom & Paul Milgrom, Short-Term Contracts and Long-Term Agency Relationships, 51 J. ECON. THEORY 1 (1990)
30. Paul Milgrom & John Roberts, Bargaining Costs, Influence Costs, and the Organization of Economic Activity, in PERSPERCTIVES ON POSITIVE POLITICAL ECONOMY 57 (James E. Alt & Kenneth A. Shepsle eds., Cambridge Univ. Press 1990).
31. Stephen H. Haber, F. Scott Kieff & Troy A. Paredes, On the Importance to Economic Success of Property Rights in Finance and Innovation, 26WASH. U. J.L. & POL'Y 215 (2008).
32. George J. Stigler, The Theory of Economic Regulation, 2 BELL J. ECON. &MGMT. SCI. 3 (1971) (basic public choice explanation about how concentrated benefits lead to particular government actions)
33. Stephen Haber, Introduction: The Political Economy of Crony Capitalism, in CRONY CAPITALISM AND ECONOMIC GROWTH IN LATIN AMERICA: THEORY AND EVIDENCE xi (Stephen Haber ed., Hoover Inst. Press 2002) (data supporting "crony capitalism" theory of regulation).
34. Elinor Ostrom, Collective Action and the Evolution of Social Norms, 14 J. ECON. PERSP. 137 (2000).
35. F. Scott Kieff, On Coordinating Transactions in Intellectual Property: A Response to Smith's Delineating Entitlements in Information, 117 YALE L.J. POCKET PART 101, 106-09 (2007)
36. Richard. A. Epstein, The Permit Power Meets the Constitution, 81 IOWA L. REV. 407 (1995)) (labeling the problem "permit thickets")
37. Sunita Parikh & Barry R. Weingast, A Comparative Theory of Federalism: India, 83 VA. L. REV. 1593, 1608 (1997)
38. (labeling the problem "License Raj").
39. The set of doctrines explored here does not exhaust the full set currently in use. Others include the availability of compulsory licensing in special cases, as well as a host of other existing "pressure-release valves" operating in the patent system through their role in the larger system of general commercial law, such as the uncertainty and delay of litigation, the use of limited liability business forms like the corporation, and bankruptcy law.
40. Richard A. Epstein & F. Scott Kieff, Questioning the Frequency and Wisdom of Compulsory Licensing for Pharmaceutical Patents, 78 U. CHI. L. REV. 71 (2011) (reviewing compulsory licensing)
41. F. Scott Kieff, Removing Property from Intellectual Property and (Intended?) Pernicious Impacts on Innovation and Competition, 19 SUP. CT. ECON. REV. 11, 31-33 (2011) (reviewing existing set of pressure-release valves from the general body of commercial law).
42. But fitting any particular technology into the proper category can face more than the usual line drawing problems. Taking in the aggregate all of the arguments made about patents brings this point into high relief: high-tech products are said to be so componentized that the patent notice problem is so much worse for them (more components equals more targets) that the entire category should be exempt from patents, while low-tech products are said to be so simple that the entire category should be treated as per se unpatentable for being obvious, and biomedicine products are said to be so essential that all of their patents merit compulsory licenses to entities further down the production chain. If each of these arguments is taken for its full effect, the practical business impact of a categorization decision would matter little because any particular patent can be ignored by the market so long as the patent can credibly be labeled as a member of at least one of these categories. Indeed, the effort spent fitting a given technology into the right category may merely distract from the overall combined effect of treating each specific category with enhanced skepticism about patent enforcement.
43. James Bessen, Jennifer Ford & Michael J. Meuer, The Private and Social Costs of Patent Trolls, 34 REGULATION 26 (2011).
44. To be sure, if the particular claim in the asserted patent is limited by intent, then intent would be part of the basic infringement analysis for that particular claim in the patent. But there is debate about whether such intent limitations are even allowed in patents. Furthermore, indirect and group liability for patent infringement also can require proof of intent, such as intent to induce infringement by another or intent to form a legally recognizable partnership with another. 38 Benito Arruñada, Property as an Economic Concept: Reconciling Legal and Economic Conceptions of Property Rights in a Coasean Framework, 59 INT'L REV. ECON. 121 (2012).
45. In a recording system, all documents of title are filed (usually in copy, not original) in some publicly searchable government repository with no particular administrative review other than perhaps for form and payment of some filing fee to earn recordation. Registration systems involve the added step of purging conflicting entries when new ones are filed.
46. Like the patent system, the trademark system has a similar registration system for marks in use, as well as for marks that someone intends to put to use. In addition, the chance of an alleged infringer being caught unaware with respect to any unregistered marks is mitigated by the trademark system's requirement that any rights in such marks will be contingent upon a showing by the one claiming ownership of the mark that it has been known to a broad base of market participants to have been functioning like a mark. The copyright system also pays similar attention to ensuring infringers are not caught unaware. Copyright registration is required before various forms of enhanced damages are available for infringement; and the underlying case of liability depends on whether there has been some actual copying. Independent origination is a complete defense to a charge of copyright infringement.
47. Vincenzo Denicolò, Damien Geradin, Anne Layne-Farrar & A. Jorge Padilla, Revisiting Injunctive Relief: Interpreting eBay in High-Tech Industries with Non-Practicing Patent Holders, 4 J. COMPETITION L. & ECON. 571 (2008).
48. Note that this is not as straightforward as it might at first seem. Even patent claims that appear to exactly reflect the technical specifications drafted for a given standard may nonetheless have workable non-infringing substitutes, such as when the courts take a restrictive interpretation of the patent's claims or when the feature in the standard is optional.
49. Some have decried SSO disclosure rules as encouraging "over-disclosure," and indeed many do, in that patent holders make declarations of potentially essential patents. Given that determining genuine essentiality is a difficult, time-consuming, and subjective task (requiring a legal and technical comparison of patent claims to standard specifications), this may be a preferable approach to the alternative of "under-disclosure," which would enable more opportunistic patent ambush. But a key point to keep in mind is that there are important reasons to think that those industrial actors actually participating in the SSO will be better than government actors in titrating the rules to the best levels.
50. SSOs add "Fair" before RAND, asking for a FRAND commitment. RAND and FRAND are generally viewed as equivalent. Only one SSO (VITA), to the best of our knowledge, requires disclosure of maximum terms and conditions before a patented technology will be considered for inclusion in a standard. IEEE has a voluntary licensing terms and conditions disclosure policy, but few members have taken advantage of it. 49 See, e.g., Marc Rysman & Timothy Simcoe, A NAASTy Alternative to RAND Pricing Commitments (Boston Univ., Dep't of Econ., Working Paper, No 2010-056 2011), available at http://people.bu.edu/tsimcoe/documents/published/NAAST.pdf.
51. ETSI Rules of Procedure, Annex 6: ETSI IPR Policy § 6.1 (Nov. 30, 2011), available at http://www.etsi.org/images/etsi_ipr-policy.pdf ("The above undertaking may be made subject to the condition that those who seek licenses agree to reciprocate.") [hereinafter ETSI IPR Policy].
52. Karsten Meinhold, Chairman, ETSI IPR Special Comm., The ETSI IPR Policy: A Key Element for the Success of ETSI's Globally-Applicable Standards, EC Workshop on "Intellectual Property Rights in ICT Standardisation" (Nov. 19, 2008).
53. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006). Significant debate exists about the extent to which this four-factor test was as well established as the Supreme Court stated.
54. John M. Golden, Principles for Patent Remedies, 88 TEX. L. REV. 505 (2010)
55. Doug Rendleman, The Trial Judge's Equitable Discretion Following eBay v. MercExchange, 27 REV. LITIG. 63, 76 (2007) ("Remedies specialists had never heard of [eBay's] four-point test.").
56. F. Scott Kieff & Henry E. Smith, How Not to Invent a Patent Crisis, in REACTING TO THE SPENDING SPREE: POLICY CHANGES WE CAN AFFORD 55 (Terry Anderson & Richard Sousa eds., Hoover Inst. Press 2009).
57. Richard A. Epstein, A Clear View of The Cathedral: The Dominance of Property Rules, 106 YALE L. J. 2091, 2102 (1997)
58. Herbert F. Schwartz, Injunctive Relief in Patent Infringement Suits, 112 U. PA. L. REV. 1025, 1045-46 (1964); 42 AM. JUR. 2D Injunctions (2005).
59. City of Milwaukee v. Activated Sludge, Inc., 69 F.2d 577 (7th Cir. 1934) (dissolving an injunction against an infringing sewage-disposal system). While the geography of the line-drawing this factor does around public health may be hard to locate with precision, it is hard to imagine it being so expansive as to include the attenuated and indirect threat of slightly increased production costs for cell phones, laptop computers, television, and games.
60. Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 505-07 (1964) (interpreting the Act of 1946 §§ 67 & 70).
61. Kori Corp. v. Wilco Marsh Buggies & Draglines, Inc., 761 F.2d 649, 653-56 (Fed. Cir. 1985).
62. Riggs v. Palmer, 115 N.Y. 506, 511, 22 N.E. 188 (1889).
63. Panduit Corp. v. Stahlin Bros. FibreWorks, Inc., 575 F.2d 1152, 1156 (6th Cir. 1978).
64. Siemens Medical Solutions USA, Inc. v. Saint-Gobain Ceramics & Plastics, Inc., 637 F.3d 1269, 1290 (Fed. Cir. 2011) ("the floor for a damage award is no less than a reasonable royalty").
65. F. Scott Kieff, File First, Invent Later?, DEFINING IDEAS, June 13, 2011
66. F. Scott Kieff, Patent Reform Goes Haywire, DEFINING IDEAS, June 10, 2011
67. F. Scott Kieff, Welcome to Patent Purgatory, DEFINING IDEAS, June 9, 2011
68. F. Scott Kieff, The Perils of Patent Reform, DEFINING IDEAS, June 7, 2011.
69. Colleen Chien, Richard J. Gilbert, Carl Shapiro, Thomas F. Cotter & Stefania Fusco, RAND Patents and Exclusion Orders: Submission of 19 Economics and Law Professors to the International Trade Commission (Santa Clara U. Leg. Stud. Research Paper No. 07-12, 2012).
70. While Google recently committed to antitrust authorities to limit its own ability to enforce those newly acquired patents to the extent they are subject to enforceable commitments to be licensed on fair, reasonable, and nondiscriminatory (FRAND) terms, that new commitment does not appear to limit injunctions if the other party does not agree to terms that are FRAND; nor does it reach all of the newly acquired patents or any of the patents within Google's treasure trove of original patents on search. In re Motorola Mobility LLC & Google Inc., No. 1210120, at 4, 7 (F.T.C. Jan. 3, 2013), available at http://www.ftc.gov/os/caselist/1210120/130103 googlemotorolado.pdf ("'FRAND Patent' means a Patent Claim solely to the extent such Patent Claim is subject to a FRAND Commitment. A Patent Claim shall be considered a FRAND Patent only with respect to the practice of such claim implementing the Standard for which the relevant FRAND Commitment was made, and not with respect to the practice of such claim in any other way outside the scope of the relevant FRAND Commitment. . . . Respondents shall cease and desist from directly or indirectly making any future claims for Covered Injunctive Relief based on alleged Infringement of a FRAND Patent except as permitted under this Order. . . . [N]othing in this Order shall . . . require Respondents to give a FRAND Commitment with respect to any Standard or proposed Standard."). 65 Anne Layne-Farrar, Be My FRAND: Standard Setting and Fair, Reasonable and Nondiscriminatory Terms (2010), available at
71. For example, in Apple v. Motorola, Apple announced on the eve of trial that it would abide by the judge's RAND determination only if that determination fell below $1 per device.
72. Alison Frankel, How Apple Botched Its Fair Rate Case Against Motorola, THOMSON REUTERS, Nov. 6, 2012, http://blogs.reuters.com/alison-frankel/2012/11/06/how-apple-botched-its-fair-rate-caseagainst- motorola/.
73. Mark A. Lemley & Mark P. McKenna, Is Pepsi Really a Substitute for Coke? Market Definition in Antitrust and IP, 100 GEO. L.J. 2055 (2012).
74. Mark A. Lemley & Carl Shapiro, Patent Holdup & Royalty Stacking, 85 TEX. L. REV. 1991, 2002 (2007).
75. The recognition that true value, marginal value, or incremental value, vary hugely across individuals, and across time reveals a central flaw in the search for these values.
76. Trial Transcript at 10-24, Apple, Inc. v. Motorola, Inc., No. 11-cv-8540 (N.D. Ill. Jan. 23, 2012).
77. Joe Nocera, Innovation Nation at War, N.Y. TIMES (Feb. 8, 2013), http://www.nytimes.com/ 2013/02/09/opinion/nocera-innovation-nation-at-war.html.
78. Opinion & Order, Apple, Inc. v. Motorola, Inc., No. 11-cv-8540 (N.D. Ill. June 7, 2012) (noting failure of proof).
79. Keith Lang, Realization of Rounded Rectangles, IU & US BLOG (July 27, 2009, 8:48 AM), http://www.uiandus.com/blog/2009/7/26/realizations-of-rounded-rectangles.html.
80. Anthony Tseng, Why Rounded Corners Are Easier on the Eyes, UX MOVEMENT BLOG (Aug. 17, 2011, 10:17 PM), http://uxmovement.com/thinking/why-rounded-corners-are-easier-on-the-eyes/.
81. The seminal work here is by John Nash and is referred to as Nash Bargaining Theory. See John F. Nash, Jr., The Bargaining Problem, 18ECONOMETRICA 155 (1950).
82. As Mark Schankerman and Suzanne Scotchmer conclude, "a wide array of damage measures may be consistent with the lost profit (lost royalty) doctrine of damages."
83. Mark Schankerman & Suzanne Scotchmer, Damages and Injunctions in Protecting Intellectual Property, 32 RAND J. ECON. 199 (2001).
84. Judge Robart recognized that reasonable royalties fall within a range in his groundbreaking ruling in the Microsoft v. Motorola decision, the first court ruling on what a FRAND rate is. Findings of Fact and Conclusions of Law, Microsoft Corp. v. Motorola Mobility, Inc., Case No. C10-1823JLR (Apr. 25, 2013) (Robart, J.) ("To decide whether Motorola's opening offers were in good faith, a fact-finder must be able to compare them with a reasonable RAND royalty rate and, because more than one rate could conceivably be RAND, a reasonable RAND royalty range.").
85. For a discussion of the "range of reasonableness test" for evaluating FRAND offers
86. Roger G. Brooks & Damien Geradin, Taking Contracts Seriously: The Meaning of the Voluntary Commitment to License Essential Patents on "Fair and Reasonable" Terms, in INTELLECTUAL PROPERTY AND COMPETITION LAW: NEW FRONTIERS 389 (Steven Anderman & Ariel Ezrachi eds., Oxford Univ. Press 2011).
87. Recall that SEPs are merely declared as potentially essential for the practice of a standard. No SSO body makes any attempt to assess whether the patents that are declared as potentially essential actually are essential. Moreover, such a determination can change over time (as recognized in the European Commission's draft Guidelines on Technology Transfer Block Exemption Regulations, latest draft issued February 20, 2013).
88. Stephen M. Bainbridge, The Business Judgment Rule as Abstention Doctrine, 57VAND. L. REV. 83 (2004).
89. Layne S. Keele, Res"Q"ing Patent Infringement Damages After ResQNet: The Dangers of Litigation Licenses as Evidence of a Reasonable Royalty, 20 TEX. INTELL. PROP. L.J. 181 (2012) (discussing arguments about excluding from evidence the so-called "litigation licenses" that were explored in the case of ResQNet.com, Inc. v. Lansa, Inc., 594 F.3d 860, 872 (Fed. Cir. 2010)) ("license fees negotiated in the face of a threat of high litigation costs may be strongly influenced by a desire to avoid full litigation").
90. Brian J. Love, Patentee Overcompensation and the Entire Market Value Rule, 60 STAN. L. REV. 263 (2007).
91. Lucent Technologies Inc. v. Gateway, Inc., 509 F. Supp. 2d 912 (S.D. Cal. 2007).
92. Damien Geradin & Anne Layne-Farrar, Patent Value Apportionment Rules for Complex, Multi-Patent Products, 27 SANTACLARACOMPUTER & HIGH TECH L.J. 763 (2011).
93. Mark A. Lemley, Ten Things to Do About Patent Holdup of Standards (and One Not to), 48 B. C. L. REV. 149 (2007).
94. Jorge L. Contreras, Rethinking RAND: SDO-Based Approaches to Patent Licensing Commitments, ITU Patent Roundtable (Oct. 10, 2012).
95. Joseph Farrell, John Hayes, Carl Shapiro & Theresa Sullivan, Standard Setting, Patents, and Hold-up, 74ANTITRUST L. J. 603 (2007).
96. Of course, this example also assumes that a "universal and agreed value" of the patented technologies even exists, which is highly unlikely. Anne Layne-Farrar & Gerard Llobet, Moving Beyond Simple Examples: Assessing the Incremental Value Rule Within Standards (2013), available at www.cemfi.es/~llobet/multidim2.pdf.
97. JEAN TIROLE, THE THEORY OF INDUSTRIALORGANIZATION 39 (MIT Press 1988).
98. A related rule of thumb for those cases of infringement that are based on the doctrine of equivalents, which extends the literal claims to cover a penumbra of hard-to-foresee additional invention space, would dictate that the remedy should be presumed (strongly) to include only damages, not an injunction.
99. Henry E. Smith, Intellectual Property as Property: Delineating Entitlements in Information, 116 YALE L.J. 1742 (2007).
100. Henry E. Smith, An Economic Analysis of Law Versus Equity (2010), available at www.law.yale. edu/documents/pdf/LEO/HSmith_LawVersusEquity7.pdf.
101. Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060, 2070 (2011).
102. Jerry A. Hausman, Gregory K. Leonard & J. Gregory Sidak, Patent Damages and Real Options: How Judicial Characterization of Non-Infringing Alternatives Reduces Incentives to Innovate, 22 BERKELEY TECH. L.J. 825 (2007)
103. Jerry A. Hausman & J. Gregory Sidak, A Consumer-Welfare Approach to the Mandatory Unbundling of Telecommunications Networks, 109 YALE L.J. 417, 432 (1999).