Antitrust and Balance of Interests in Standards Development – Lessons from NSS Labs. v. Symantec

Abstract

The recent decision of the District Court of the Northern District of California, in NSS Labs. v. Symantec sheds light on the requirement that Standard Development Organizations (SDO) achieve a balance of interests in their procedures. Whilst the court ultimately did not rule on this point, the U.S. Department of Justice (DOJ) intervened in the case to insist – correctly in our view – that SDOs must meet that requirement in order to benefit from protection against antitrust liability under the Standard Development Organization Advancement Act (SDOAA). We argue that a balance of interests in standardization procedures is essential not only under the SDOAA, but also for the application of antitrust to SDOs more generally. Furthermore, this requirement is distinct from and additional to other antitrust considerations, such as absence of dominance, collusion, or manipulation of standardization processes. Nevertheless, a balanced membership composition is not the only way for SDOs to achieve such a balance of interests.

Note: An abridged version of this paper was published in CPI Antitrust Chronicle.

Keywords: Standards development, balance of interests, antitrust, SDOAA

JEL Classification: K21, L44