In its February and June 2022 Continental v. Avanci decisions, the Court of Appeals for the Fifth Circuit affirmed, and then reaffirmed, dismissal of Continental’s alleged antitrust claims against the licensing program of the Avanci’s standards essential patents (“SEP”) platform and some of its member licensors. The new decisions follow similar analyses by the Court of Appeals for the Ninth Circuit, District Court for the Eastern District of Texas, and the U.S. Department of Justice Antitrust Division. These decisions and policy pronouncements all rejected attempts to argue that antitrust law imposes a “compulsory license to all” (“CLTA”) confirming, instead, that SEP holders are free to choose their licensing model, and technology users cannot impose a compulsory duty on them to do business on any particular terms preferred by the plaintiffs. After nearly a decade of judicial and regulatory resources spent on considering and dismissing CLTA arguments, it is time to move on.

By Dina Kallay[1]



In its February 2022 Continental v. Avanci decision, the Court of Appeals for the Fifth Circuit vacated the district court’s decision that Continental had standing to bring an antitrust claim against Avanci’s standards essential patents (“SEP”) licensing program characterized by a field of use licensing feature. It found Continental, a maker of automotive telematics control units (“TCUs”) failed to plead facts to support a


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