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H. Stephen Harris, Jr., Jul 24, 2015
This landmark case provides much needed guidance on the approach the NDRC will take to analyzing complex issues at the intersection of antitrust and intellectual property law. However, in part because the Decision itself is drawn in broad terms, while the detailed obligations of the company are set out in a voluntary rectification plan that was acknowledged by the NDRC to meet its requirements, the Decision leaves open many questions about the NDRC’s views of the scope of its own jurisdiction. For example, the precise limitation of the geographic scope of the remedies to smartphones made in China for use in China, and the limitation of the SEPs affecting only Chinese patents, are not set out in the Decision itself.
Also, the broad language in the Decision itself presents the troubling prospect of insoluble conflicts of law conundrums that could arise if antitrust authorities of multiple jurisdictions purport to impose inconsistent worldwide licensing obligations on patent holders without regard to, or in defiance of, the axiomatic “territorial nature” of IP rights.