Hot Topics at the Interface of Intellectual Property and Competition Law Potential Antitrust Concern

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Hot Topics at the Interface of Intellectual
Property and Competition Law Potential
Antitrust Concerns in Collaborative Standard
Setting

• ABA International Law Section Fall Meeting
• September 26, 2008

Frances Marshall Special Counsel for
Intellectual Property Antitrust Division U.S.
Department of Justice Views expressed are not
necessarily those of the Department of Justice
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Standard Setting Generally

• Types of standards
• Interoperability
• Performance
• Safety
• Types of standard setting
• Government
• De facto
• Collaborative

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How Collaborative Standard Setting Promotes
Competition

• Reduce costs
• Improve products (best of breed)
• Promote interoperability
• horizontal compatibility between competing goods
• vertical ability to use the same inputs
• Foster public health and safety

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Current Potential Antitrust Concerns in
Collaborative Standard Setting

• Two different concerns
• Competitor coordination within the SSO
• Collusion among patent owners
• Collusion among SSO members
• Manipulation of the standard-setting process as a
  result of deceptive single-firm conduct

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Efforts by SSOs to Avoid Hold Up

• Disclosure Rules require IP holders to reveal
  their patents to the SSO.
• Commitments to license patents on (F)RAND terms
• Negotiate/discuss/disclose licensing terms before
  choosing one of the technologies.

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Assessing the Risk of Collusion

• Patent owner unilateral announcement of licensing
  terms
• Unilateral announcements required by SSOs or
  joint negotiations
• Not per se illegal, unless sham
• E.g. bid rigging, price-fixing
• Rule of reason consider benefits from more
  competitive licensing terms as well as harm to
  innovation.
• SSOs not required to engage in joint ex ante
  negotiations of licensing terms.

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Assessing Single-Firm Conduct

• Misrepresentation through failure to disclose
  patent to standard setting group
• Deception as a result of intentional failure to
  abide by RAND commitment
• Failure of subsequent owner to abide by RAND
  commitment

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Hot Topics at the Interface of Intellectual
Property and Competition Law Potential
Antitrust Concerns in Collaborative Standard
Setting

• ABA International Law Section Fall Meeting
• September 26, 2008

Frances Marshall Special Counsel for
Intellectual Property Antitrust Division U.S.
Department of Justice Views expressed are not
necessarily those of the Department of Justice