Yesterday, the Computer & Communications Industry Association, joined by five other trade associations representing industries ranging from retail to automotive to smartphone apps, released a white paper describing how certain views on antitrust policy as it relates to standard essential patents (SEPs) are contrary to both established legal precedent and to economic policy. The white paper expands on points made by a group of 58 companies, academics, and trade associations in a January letter; a recent letter signed by 77 professors of law and economics and former government officials reiterates many of the same points.
The white paper addresses four main points:
- Patent holdupAn attempt by a patent owner, by threatening litigation, disproportionate damages, or injunction/exclusion of a product, to extract payment from a producing company greater than the value of the patented technology. (not holdout) is a problem that can harm the economy, and competition policy can address this problem
- The “innovator”/“implementer” divide is a false dichotomy, and focusing solely on implementers ignores the consumer benefit created by others in the value chain
- Enforcement of FRAND"Fair, Reasonable, and Non-Discriminatory" licensing. A licensing commitment made for standard-essential patents in the context of technology standard setting activities. See also RAND. licensing commitments that patent owners voluntarily agree to is not compulsory licensing
- U.S. antitrust policy should encourage, rather than threaten, diversity of standards development processes (including SEPStandard-Essential Patent. A patent that a participant in standards development process declares to be essential to the practice of the standard. policies at standard setting organizations)
By continuing to address standard essential patents and standard setting organizations using the principles of law and policy addressed in the white paper, DOJ can continue to be effective in ensuring that consumer welfare is preserved while respecting the interests of all participants in the standards process.
