What a Difference a Year Makes: An Emerging Consensus on the Treatment of Standard-Essential Patents

Jonathan Kanter, Oct 15, 2013

These days, it is difficult to identify an antitrust issue that is generating more discussion than standard-essential patents. To some, SEPs are to antitrust what Breaking Bad is to television: a complex and important subject worthy of discussion. To others, SEPs are to antitrust what Miley Cyrus is to pop culture: a fad that consumes way too much attention and distracts from other more important subjects. In either case, antitrust lawyers and economists cannot stop scrutinizing the issue with vigor, fascination, and (sometimes) an admirable level of obsession.

Even just a year ago, the role of SEPs in litigation and the scope of commitments to license SEPs on fair, reasonable, and non-discriminatory terms seemed so divisive and controversial that one could not imagine any resolution in the fore. As the so-called “smartphone wars” reached a fever pitch, antitrust emerged at the center of the controversy. The U.S. Department of Justice’s Antitrust Division was in the midst of reviewing two major transactions involving large patent portfolios: Google’s acquisition of Motorola Mobility, along with MMI’s patent portfolio, and the Rockstar Consortium’s acquisition of certain patents auctioned off by then-defunct Nortel Networks.

Shortly thereafter, complaints began flowing into enforcement authorities on both sides of the Atlantic about the conduct of individual companies. The European Commission, DOJ, and Federal Trade Commission responded by openin…

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