Taking it to the Limit: Shifting U.S. Antitrust Policy Toward Standards Development

by Jorge L. Contreras

Available here.

Excerpt: “The contrast drawn by Mr. Delrahim between unilateral and concerted conduct is exemplified by two recent cases at the intersection of antitrust law and standardization: on the unilateral side, the actions brought by competition agencies around the world, including the FTC, against Qualcomm, Inc. for a range of alleged anticompetitive practices concerning the sale of wireless communication chips and patents covering wireless telecom standards. On the concerted action side, the IEEE’s 2015 patent policy amendments that sought to clarify its members’ obligation to license standards-essential patents (SEPs) on terms that are “reasonable and non-discriminatory” (RAND). Though the IEEE obtained a favorable business review letter from the DOJ prior to adopting these amendments, critics argue that the DOJ turned a blind eye to potential collusion by IEEE members that pushed through the amendments to disadvantage SEP holders.”