Potential Antitrust Liability Based on a Patent Owner’S Manipulation of Industry Standard Setting

Abstract:     
Do the antitrust laws have a role to play in policing the actions of patent owners that participate in industry standard setting? If so, how will the Federal Circuit’s appellate participation impact the treatment of patent owners, whom the court presently accords powerful antitrust immunities under the Noerr-Pennington doctrine? Should these immunities be “rolled back” so as to permit the successful assertion of antitrust violations based on a patentee’s anticompetitive manipulation, “gaming,” or “capture” of the industry standard setting process?

This paper first reviews some of the basic mechanics of antitrust counterclaims as they are raised in patent cases and the immunities that presumptively protect patent owners from antitrust liability for enforcing their statutory right to exclude. The paper then addresses the rise of industry standards and the current disputes involving the assertion of patent rights by companies that participate as members of standard setting organizations.

This paper concludes that although the antitrust laws “can serve as a useful check on abuses of the standard-setting process,” after-the-fact enforcement under the antitrust laws can not substitute for clearer, more expansive rules that will mandate full disclosure of all potentially pertinent intellectual property rights. The disclosure must occur early enough in the process to permit fully informed selection of industry standards. As explored in Section VI, the assertion of Noerr-Pennington immunities may limit the role of antitrust enforcement against the holders of patents on industry standards in certain instances.

Number of Pages in PDF File: 55

Keywords: antitrust laws, antitrust counterclaims, patent law, patent infringement, patent misuse, equitable estoppel, industry standards, industry standard setting, standard setting organizations, disclosure obligations, Nobelpharma AB v. Implant Innovations, U.S. Court of Appeals for the Federal Circuit, I

Accepted Paper Series