What’s New at the IP and Antitrust Crossroad

In this issue:

The intersection of antitrust and intellectual property continues to be tricky to navigate. Several competition authorities (Canada, Japan, Korea) have issued new approaches while other countries (India) have begun to look at case law. This week we’re going to look at some of these trends; in our next issue we’re going to burrow deeper and analyze a significant case in Europe, the Huawei decision. Welcome back to the land of acronyms, trolls, sticky patents, holdups, and much more.


What’s New at the IP and Antitrust Crossroad

Douglas Ginsburg, Koren Wong-Ervin, Joshua Wright, Oct 14, 2015

The Troubling Use of Antitrust to Regulate FRAND Licensing

These new rules are premised upon the mistaken belief that holdup is both frequent and results in significant consumer harm. Douglas H. Ginsburg, Koren W. Wong-Ervin, & Joshua D. Wright (George Mason University School of Law)

Lisa Kimmel, Oct 14, 2015

Injunctive Relief for Infringement of FRAND-Assured Standard-Essential Patents: Japan and Canada Propose New Antitrust Guidance

Regulators across the globe should ensure that any antitrust restrictions that constrain the ability of SEP owners to enforce their rights be grounded in a case-specific analysis of competitive effects. Lisa Kimmel (Crowell & Moring)

Anita Banicevic, Mark Katz, Oct 14, 2015

Canada’s Updated Draft Intellectual Property Enforcement Guidelines and the Pharmaceutical Industry

The draft IPEGs reflect a significant (and helpful) departure from the previously suggested approach of applying the criminal conspiracy provisions to such settlements in a potentially broad manner. Anita Banicevic & Mark Katz (Davies Ward)

David Rosner, Oct 14, 2015

Canada’s New Intellectual Property Enforcement Guidelines—New Rules for SEPs in Canada

In turn, this reduces the likelihood that the Bureau will have actual cases to investigate and bring forward in the near term. David Rosner (Blake)

Samir Gandhi, Fadi Metanios, Hemangini Dadwal, Oct 14, 2015

Competition Law and FRAND: Developments and Challenges in India

The rapid development of technology-based industries and growth of the smartphone user base in India increases the likelihood of industry participants choosing India as a jurisdiction in which to challenge FRAND commitments. Samir R. Gandhi, Fadi Metanios, & Hemangini Dadwal (AZB & Partners)

Arshad (Paku) Khan, Dhruv Rajain, Oct 14, 2015

FRAND Developments—An Indian Competition Law Perspective

The CCI’s prima facie orders have received mix reviews from various quarters of the Indian economy, specifically due to the observations made by the Delhi High Court on the jurisdictional issue. Arshad (Paku) Khan & Dhruv Rajain (Khaitan & Co.)

Douglas Ginsburg, Joshua Wright, Bruce Kobayashi, Koren Wong-Ervin, Oct 14, 2015

Digging Deeper: Supplemental Reading

Reprints of four comments submitted by former FTC Commissioner Joshua Wright and Judge Douglas Ginsburg, among others, regarding new IP legislation in Canada, Japan, China, and Korea.