Comments on the Anti-Monopoly Guidelines on the Abuse of Intellectual Property Rights

J. Gregory Sidak

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January 18, 2016

National Development and Reform Commission
Price Supervision Bureau
No. 38 South Street Altar
Xicheng District 100824
People’s Republic of China

Re: Comments on the Anti-Monopoly Guidelines on the Abuse of Intellectual Property Rights

Ladies and Gentlemen:

The National Development and Reform Commission (NDRC) has invited public comments on its Anti-Monopoly Guidelines on Abuse of Intellectual Property Rights (Guidelines). I respectfully submit my comments and suggestions concerning the Draft Guidelines.

My name is J. Gregory Sidak. I am the chairman of Criterion Economics, LLC in Washington, D.C. I am also a founding co-editor of the Journal of Competition Law & Economics, published quarterly by the Oxford University Press since 2005. For 35 years, I have worked at the intersection of law and economics in academia, government, and private practice. As an expert economic consultant, I have served clients in the Americas, Europe, and the Pacific. I have worked extensively in the area of antitrust and patents: I have testified as an economic expert on issues regarding fair, reasonable, and nondiscriminatory (FRAND) licensing of standard-essential patents (SEPs) in various legal proceedings, I have published numerous academic articles on these topics, and I have presented my research at major universities and international conferences. I have also served as Judge Richard Posner’s court-appointed neutral economic expert on patent damages in the U.S. District Court for the Northern District of Illinois. With respect to this submission, I do not represent any party, and I have no economic interest in the adoption of the Anti-Monopoly Guidelines.

I attach five articles that I have written in recent years that add depth to the ideas expressed in this letter. The first article, Bargaining Power and Patent Damages, explains the economic principles that guide the calculation of patent damages. The second article, The Meaning of FRAND, Part I: Royalties, examines economic methodologies to determine a FRAND royalty for SEPs. The third article, Apportionment, FRAND Royalties, and Comparable Licenses After Ericsson v. D-Link, explains how U.S. courts’ decisions in cases concerning SEPs can assist courts in other jurisdictions to determine a FRAND royalty. The fourth article, Evading Portfolio Royalties for Standard-Essential Patents Through Validity Challenges, examines the marginal benefits and costs that challenges to patents’ validity have for consumers. The fifth article, The Meaning of FRAND, Part II: Injunctions, analyzes the SEP holder’s right to request an injunction from the perspectives of antitrust, contract, and patent law.

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