Antitrust Law Daily Wrap Up, ANTITRUST NEWS: American Antitrust Institute Asks Agencies to Issue Guidelines for Patent Policies of Standard Setting Organizations, (May 30, 2013)

The American Antitrust Institute announced yesterday that it has sent a petition to the Department of Justice and the FTC, asking the agencies to issue joint enforcement guidelines regarding the patent policies of standard setting organizations (SSOs).

The petition notes that “[s]tandard setting can promote downstream competition, interoperability, and innovation,” but can also present significant anticompetitive risks, including “collusion, exclusion, and holdup.” The petition recommends that “SSOs that fail to adopt clear, well-crafted patent policies should be held liable under the antitrust laws,” and that the FTC should issue guidelines that would motivate SSOs to adopt such polices and that would give them greater legal certainty.

The petition also suggests that the Justice Department and FTC should grant a safe harbor to SSOs that create and enforce the following policies:

1) Mandatory disclosure of relevant patents as well as anticipated and pending patent applications, supported by good faith reasonable inquiry;

2) Royalty-free licensing of patents that are not disclosed in violation of disclosure obligations and consequently incorporated into a standard;

3) Commitment to license SEPs on RAND terms;

4) Prohibition on SEP owners seeking injunctions and exclusion orders against any willing licensee;

5) Stipulation that licensing commitments run with the SEP;

6) Cash-only license option for individual SEPs; and

7) Efficient, cost-effective process to resolve disputes over RAND royalty and non-royalty terms.

News: Antitrust