As we have previously addressed, the Federal Trade Commission (FTC) and the Department of Justice, Antitrust Division, have recently expanded their roles in regulating collaborative standard setting and policing disputes involving holders of standard essential patents (SEPs).1 In our most recent article on this topic, we examined the FTC’s controversial enforcement approach in two cases involving alleged patent hold-ups, In re Robert Bosch GmbH2 and In re Motorola Mobility,3 and the divide between the commissioners as to whether an SEP holder could violate the antitrust laws merely by seeking injunctive relief.
At that time, we observed that this divide created uncertainty with respect to the antitrust risks facing SEP holders, and we advocated for the agencies to provide guidance on enforcement policy.4 In a speech last month, Assistant Attorney General Bill Baer echoed this need for clarity, recognizing that “competition agencies need to be prepared to give guidance to standard setting organizations (SSOs) on what ex ante rules can legitimately address concerns with patent hold-up without risking antitrust challenge.”5
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