Patent Continuations, Patent Deception, and Standard Setting: The Rambus and Broadcom Decisions

Herbert Hovenkamp, May 25, 2008

This paper explores the implications of two recent Federal Circuit Court decisions involving patent holdup in the standard setting process. While the Rambus decision can be defended as a matter of antitrust policy, it exposes serious deficiencies in the patent continuation process that can legally permit anticompetitive holdup to occur. Broadcom, by contrast, is arguably not about antitrust policy at all, but rather the law of contract or equitable estoppel.

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