Two leading scholars examined patent filings, research and development spending, venture capital investment, and productivity growth post-eBay.  They concluded that eBay’s clarification that injunctions in patent law are subject to the traditional four-part equitable test did not have any negative impact on innovation in the U.S.  Tim Simcoe and Filippo Mezzanotti, “Patent Policy and American Innovation after Ebay: An Empirical Examination.”  

Three law professors recently examined the concept of patent holdup in detail.  Providing a detailed analysis of how to calculate the holdup portion of a royalty demand, they assess the factors of sunk costs, higher redesign costs, and foregone benefits.  They also provide an in-depth analysis of recent critiques of the concept of patent holdup by the head of the U.S. DOJ’s Antitrust Division (AAG Delrahim). Cotter, Thomas F. and Hovenkamp, Erik and Siebrasse, Norman, Demystifying Patent Holdup (February 15, 2019). 76 Washington and Lee Law Review, 2019, Forthcoming.

In March 2018, FTC Commissioner Terrell McSweeny issued public comments regarding patent holdup. Specifically, he disputed the suggestion by some (including AAG Delrahim) that there is no evidence for the existence of patent holdup.  Comm. McSweeney argues persuasively that patent holdup exists, evidenced, in part, by the fact that courts in two F/RAND rate-settig cases determined F/RAND rates to be orders of magnitude less than the royalties sought by SEP holders.  Holding the Line on Patent Holdup: Why Antitrust Enforcement Matters, Commissioner Terrell McSweeny, March 21, 2018