Published: June 1, 2018

Publisher: Law 360

Tech groups representing the tech, auto and retail industries Thursday released a white paper pushing back at a suggestion by a top U.S. antitrust official that enforcers should shift their focus away from potential abuses by holders of patents crucial to standard industries in favor of greater scrutiny on licensees.

Statements last November by Makan Delrahim, U.S. assistant attorney general for antitrust, cast doubt on the notion that users of standardized technologies are disproportionately vulnerable to “hold-up” from standard essential patent (SEP) owners, a view that is at odds with long-standing expert consensus on the subject, according to the white paper. The report was released by ACT | The App Association, the Alliance of Automobile Manufacturers, the Computer & Communications Industry Association, the High Tech Inventors Alliance, the National Retail Federation and the Software & Information Industry.

“The view that hold-up by owners of standard essential patents (SEPs) is not an antitrust problem contradicts what scholars, the U.S. courts, and competition authorities around the world have long-recognized: clear, enforceable rules that constrain the ability of a SEP owner to exploit the market power created by the inclusion of its SEP in a popular standard are necessary to realize the required pro-competitive efficiencies of standardization,” the white paper says.

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