Putting Together a Competitive Puzzle: How to Understand and Assemble the Pieces of the New Madison Approach

The New Madison Approach, championed by former Assistant Attorney General Makan Delrahim, sets forth a framework for understanding how antitrust law, patent law, and contract law intersect and interrelate in the field of technology standards. Commentators often conflate these divergent, but complementary, areas of law and seek to substitute one for the other, especially in disputes involving standard essential patents. In doing so, they often arrive at the conclusion that the puzzle is missing some pieces. By recognizing the work that each of these doctrines can and should do, the New Madison Approach solves the puzzle and presents an appealing picture of competition in the innovation age.

By Kristen Osenga¹

At a time when our world is becoming increasingly interconnected – where 5G and the Internet of Things are both the technologies of the present and provide a glimpse of the future – the importance of technological standards can hardly be exaggerated. What is, however, often overstated are the anticompetitive aspects associated with standardization. Worse still, what is overlooked are the competitive, and even hyper-competitive, outcomes that spring from standards development. Understanding the pro-competitive benefits of standardization comes in part from a clear grasp of the standardization process and in part from recognizing the intersection and interrelationship of antitrust law, patent law, and contract law where technology standardization comes tog