This issue, compiled with Danny Sokol’s guidance, dives into the very murky waters of patents and acronyms—SEPs, FRANDs, non-SEPs among others. As one of our esteemed authors notes, antitrust lawyers and economists are scrutinizing these with “vigor, fascination, and (sometimes) an admirable level of obsession.”
So do SEPs (and their relatives) warrant special antitrust consideration? How should antitrust laws address concerns inherent in the defensive use of SEPs – especially regarding the tricky issue of injunctive relief? And what about those patents that are still FRAND-encumbered but not SEPs? Or how about patent enforcement that has been outsourced? And are some agencies getting carried away? Finally, how did Miley Cyrus get into the conversation? We look at all those questions.
And does any conclusion stand out? One strong one – if you’re involved in antitrust today, this is a field you really need to understand. And reading these papers will move you a long way down that road.
The Murky Intersection of Antitrust & Standard Setting
The time may have thus come to talk of other things, such as outsourcing patent enforcement by operating companies to patent assertion entities. Sean P. Gates (Morrison & Foerster LLP)
Simply put, there is no legal or economic reason to discriminate between a RAND commitment made to an SSO and a RAND commitment made to an industry at large. John D. Harkrider (Axinn, Veltrop & Harkrider LLP)
Three particularly problematic issues: tying, unwilling licensees, & royalty stacking. John (Jay) Jurata, Jr. & David B. Smith (Orrick, Herrington & Sutcliffe LLP)
What a Difference a Year Makes: An Emerging Consensus on the Treatment of Standard-Essential Patents
Setting aside the rhetoric of interested parties on all sides of the issuehich remains as divisive as ever one can see a consensus beginning to emerge around certain key principles. Jonathan Kanter (Cadwalader, Wickersham & Taft LLP)
The Emperor’s Clothes Laid Bare: Commitments Creating the Appearance of Law, While Denying Access to Law
Actually depriving companies of access to injunctive relief also raises worrying concerns about a constitutional imbalance of powers, which again cannot be tested, let alone righted, under the commitments procedure. Philip Marsden (College of Europe, Bruges & British Institute of International and Comparative Law)
Patently Obvious: Why Seeking Injunctions on Standard-Essential Patents Subject to a FRAND Commitment Can Violate Section 2 of the Sherman Act
The agencies should not hesitate to pursue FRAND violations to protect competition. Greg Sivinski (Microsoft)
The debate has not explored with much depth the effect of a policy that treats FRAND commitments that are made in the context of an SSO differently from those outside of an SSO. Nadia Soboleva & Lawrence Wu (NERA Economic Consulting)