Published: 2/13/12
This statement announced the closing of the acquisitions of two large patent portfolios in the telephony and networking industries. During the investigation, some firms expressed concerns about the anticompetitive use of SEPs that were included within the acquired portfolios. These concerns, were obviated, however, by the acquirers’ commitment during the course of the investigation to license the acquired SEPs on FRAND terms and “not to seek injunctions in disputes involving SEPs.”
The Antitrust Division’s statement explained the potential for patent hold-up by SEP holders. “Such hold up could include raising the costs to rivals by demanding supracompetitive licensing rates, compelling prospective licensees to grant the SEP holder the right to use the licensee’s differentiating intellectual property, charging licensees the entire portfolio royalty rate when licensing only a small subset of the patent holder’s SEPs in its portfolio, or seeking to prevent or exclude products practicing those SEPs from the market altogether.” Because the permissibility of an acquisition hinges on whether the acquisition would increase market power as compared to the pre-acquisition period, the Antitrust Division’s analysis focused on that issue rather than with FRAND abuse generally. Although no basis existed for concluding that the acquisitions would lead to FRAND abuse, the Antitrust Division stressed that it “continues to have concerns about the potential inappropriate use of SEPs to disrupt competition and will continue to monitor the use of SEPs in the wireless device industry, particularly as they relate to smartphones and computer tablets.”