Comments on: IPR Licensing and Antitrust – The Transatlantic Divide http://www.talkstandards.com/ipr-licensing-and-antitrust-the-transatlantic-divide/ Tue, 18 Oct 2011 15:30:13 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Marcus Glader http://www.talkstandards.com/ipr-licensing-and-antitrust-the-transatlantic-divide/comment-page-1/#comment-91 Marcus Glader Thu, 24 Sep 2009 12:22:11 +0000 http://www.talkstandards.com/?p=1624#comment-91 Re (1) and (4): A multipronged approach appears to be way forward. The SSOs should be encouraged to make refinements to their IPR policies. Ex ante negotiation models and other potentially promising solutions to hold-up problems may work in some contexts but not in others. Certain issues can be dealt with as a matter of contract law, in particular where the IPR policies are clear. But it is unlikely that a district court judge, in contractual dispute between two parties, could impose an effective global remedy to a reneging IP holder. As in many other business contexts, it is important that abuses ultimately can be remedied through antitrust intervention if necessary. It is in the shadow this possibility that industry participants in most cases will find a reasonable solution, either on a bilateral or multilateral basis, without involving the antitrust authorities.<br/><br/>Re 3: I’m not sure the transatlantic divide is that significant. The US agencies and the EC Commission seem to agree on the important policy issues. While there are significant legal differences between Article 82 and Section 2, the end result may not differ that much. From a legal perspective, it seems to me that a patent ambush may have an exclusionary element as well as exploitative under Article 82. And the remedies currently considered by the EU Commission in Rambus are in any event similar to those that the FTC had in mind. Similarly, in Broadcom v Qualcomm, the US Third Circuit Court of Appeals held that a patent holder’s intentionally false promise to license essential proprietary technology on FRAND terms, coupled with an SSO’s reliance on that promise and the patent holder’s subsequent breach of that promise, is actionable anticompetitive conduct under US law.<br/>The antitrust authorities also tend to analyze agreements on standards in conformity under Article 81 and Section 1, respectively.<br/> Re (1) and (4): A multipronged approach appears to be way forward. The SSOs should be encouraged to make refinements to their IPR policies. Ex ante negotiation models and other potentially promising solutions to hold-up problems may work in some contexts but not in others. Certain issues can be dealt with as a matter of contract law, in particular where the IPR policies are clear. But it is unlikely that a district court judge, in contractual dispute between two parties, could impose an effective global remedy to a reneging IP holder. As in many other business contexts, it is important that abuses ultimately can be remedied through antitrust intervention if necessary. It is in the shadow this possibility that industry participants in most cases will find a reasonable solution, either on a bilateral or multilateral basis, without involving the antitrust authorities.

Re 3: I’m not sure the transatlantic divide is that significant. The US agencies and the EC Commission seem to agree on the important policy issues. While there are significant legal differences between Article 82 and Section 2, the end result may not differ that much. From a legal perspective, it seems to me that a patent ambush may have an exclusionary element as well as exploitative under Article 82. And the remedies currently considered by the EU Commission in Rambus are in any event similar to those that the FTC had in mind. Similarly, in Broadcom v Qualcomm, the US Third Circuit Court of Appeals held that a patent holder’s intentionally false promise to license essential proprietary technology on FRAND terms, coupled with an SSO’s reliance on that promise and the patent holder’s subsequent breach of that promise, is actionable anticompetitive conduct under US law.
The antitrust authorities also tend to analyze agreements on standards in conformity under Article 81 and Section 1, respectively.

]]> By: Marcus Glader http://www.talkstandards.com/ipr-licensing-and-antitrust-the-transatlantic-divide/comment-page-1/#comment-90 Marcus Glader Thu, 24 Sep 2009 12:13:53 +0000 http://www.talkstandards.com/?p=1624#comment-90 By: Niklas Lindblom http://www.talkstandards.com/ipr-licensing-and-antitrust-the-transatlantic-divide/comment-page-1/#comment-89 Niklas Lindblom Thu, 24 Sep 2009 09:58:15 +0000 http://www.talkstandards.com/?p=1624#comment-89 Re (1): When it comes to standard bodies’ IPR policies, the clearer they get the better. That said, I would think that the problem rather lies in the fact that IPR holders sometimes, more or less deliberately, fail to meet the requirements of ex-ante disclosure. Therefore I would argue that the issue to tackle is how one should deal with non-disclosure. Forcing all IPR to be licensed on FRAND terms is perhaps one way, but that comes with a set of further questions…<br/>Re (2): I do believe that IPR policies should be enforced. The question of how this can be done is harder. <br/>Re (3): Since standardization is increasingly global, so should the behavior of authorities. The US and the EU are fundamentally different in several ways which unfortunately makes it hard to see any convergence in the near future. However, one would hope that the benefits of a mutual approach would become apparent to American and European legislators and agencies, sparking joint efforts to deal with IPR matters. Do you think that the problem with convergence could run deeper than just differences in the Competition/Antitrust laws (particularly related to IP law and litigation tradition, including settlement and damages)?<br/>Re (4): I believe that the key is to set regulatory requirements of patent disclosure and agree with arebentisch’s view on an “integrated approach”. If a harmonized approach on patent and licensing rules can be reached, I think that would prove a more effective tool that regular antitrust law.<br/> Re (1): When it comes to standard bodies’ IPR policies, the clearer they get the better. That said, I would think that the problem rather lies in the fact that IPR holders sometimes, more or less deliberately, fail to meet the requirements of ex-ante disclosure. Therefore I would argue that the issue to tackle is how one should deal with non-disclosure. Forcing all IPR to be licensed on FRAND terms is perhaps one way, but that comes with a set of further questions…
Re (2): I do believe that IPR policies should be enforced. The question of how this can be done is harder.
Re (3): Since standardization is increasingly global, so should the behavior of authorities. The US and the EU are fundamentally different in several ways which unfortunately makes it hard to see any convergence in the near future. However, one would hope that the benefits of a mutual approach would become apparent to American and European legislators and agencies, sparking joint efforts to deal with IPR matters. Do you think that the problem with convergence could run deeper than just differences in the Competition/Antitrust laws (particularly related to IP law and litigation tradition, including settlement and damages)?
Re (4): I believe that the key is to set regulatory requirements of patent disclosure and agree with arebentisch’s view on an “integrated approach”. If a harmonized approach on patent and licensing rules can be reached, I think that would prove a more effective tool that regular antitrust law.

]]> By: Timothy Simcoe http://www.talkstandards.com/ipr-licensing-and-antitrust-the-transatlantic-divide/comment-page-1/#comment-85 Timothy Simcoe Wed, 23 Sep 2009 18:10:30 +0000 http://www.talkstandards.com/?p=1624#comment-85 Some thoughts on the discussion questions:<br/><br/>(Re 1) It's hard to argue that more clarity from SSOs would hurt. And the goal would certainly be to align expectations. But given the inherent conflict of interest between implementers and IPR holders, we should not expect protests that "the other side didn't live up to expectations" to disappear. After all, it's just cheap talk.<br/><br/>(Re 2) I'd love to hear a lawyer's opinion on the prospects for using contract rather than competition law....<br/><br/>(Re 4) Patent reform is obvious place to look for alternative policy tools (see arebentisch's reply to my post on ex ante). Two possibilities are speeding up patent review to resolve uncertainty, and creating a "registry" to keep track of non-assertion covenants, licensing terms or other restrictions that arise from the standards process<br/><br/> Some thoughts on the discussion questions:

(Re 1) It’s hard to argue that more clarity from SSOs would hurt. And the goal would certainly be to align expectations. But given the inherent conflict of interest between implementers and IPR holders, we should not expect protests that “the other side didn’t live up to expectations” to disappear. After all, it’s just cheap talk.

(Re 2) I’d love to hear a lawyer’s opinion on the prospects for using contract rather than competition law….

(Re 4) Patent reform is obvious place to look for alternative policy tools (see arebentisch’s reply to my post on ex ante). Two possibilities are speeding up patent review to resolve uncertainty, and creating a “registry” to keep track of non-assertion covenants, licensing terms or other restrictions that arise from the standards process

]]> By: arebentisch http://www.talkstandards.com/ipr-licensing-and-antitrust-the-transatlantic-divide/comment-page-1/#comment-84 arebentisch Wed, 23 Sep 2009 13:02:50 +0000 http://www.talkstandards.com/?p=1624#comment-84 ad 4: An "Integrated approach" would be perfect. Competition law is for market conduct. But for the ESOs and SSOs the EU may set simple supreme rules and disclosure requirements. The inherited problems emerge from the fact that even the official SSOs are kind of NGOs which cannot exercise statutory regulatory powers themselves. The EU legislature enjoys these powers.I would argue the golden path in EU-Europe would be to get the EPC implemented as an EU directive, so substantive patent law becomes part of the acquis communautaire, otherwise the EU could also harmonise national patent law to achieve the same. Then a fully integrated EU order policy is possible, which sets ESOs rules, competition and patent rules. ad 4: An “Integrated approach” would be perfect. Competition law is for market conduct. But for the ESOs and SSOs the EU may set simple supreme rules and disclosure requirements. The inherited problems emerge from the fact that even the official SSOs are kind of NGOs which cannot exercise statutory regulatory powers themselves. The EU legislature enjoys these powers.I would argue the golden path in EU-Europe would be to get the EPC implemented as an EU directive, so substantive patent law becomes part of the acquis communautaire, otherwise the EU could also harmonise national patent law to achieve the same. Then a fully integrated EU order policy is possible, which sets ESOs rules, competition and patent rules.

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