Antitrust Limits on Patent Settlements: A New Approach
提出一种通过审查合同经济结构来判定专利和解是否违反反垄断法的新方法，避免依赖企业不可验证的诉讼预期，适用于各类和解协议。
Patent settlements between rivals restrain competition in many different ways. Antitrust requires that their anticompetitive effects are reasonably commensurate with the firms’ expectations about (counterfactual) patent litigation. Because these expectations are private and non-verifiable, this standard is hard to administer; to date, it has been successfully applied only within a very narrow class of agreements. We show that it can be applied universally by policing the economic structure of the firms’ contract. This approach determines whether settlement outcomes will be antitrust-compliant for any private beliefs the firms might have, thus avoiding the need to speculate about such beliefs. The online appendix is available at https://ssrn.com/abstract=3259259.