Third Party Michael A. Carrier's Statement on the Public Interest

Abstract

This statement on the public interest in U.S. International Trade Commission (ITC) proceeding 337-TA-1240 discusses how consumers and competitive conditions in the U.S. economy could be substantially affected by conduct in the standards context.

First, it explains how the owners of standard essential patents (SEPs) could hold up an industry. Second, it highlights the importance of patentees’ commitments to license on fair, reasonable, and nondiscriminatory (FRAND) terms. Third, it discusses how the oft-contested issue of whether a licensee is “willing” is not present in this proceeding because the Administrative Law Judge found that Thales was a willing licensee.

And fourth, it explains how the ITC has discretion to deny an exclusion order. The statute’s text, which focuses on consumers and competitive conditions in the economy, can encompass FRAND commitments. The legislative history buttresses this conclusion by specifying that 1) public interest considerations should be “paramount,” 2) exclusion orders should not be issued “where there is any evidence of . . . monopolistic practices,” and 3) the ITC should consult with agencies offering expertise, like the U.S. Department of Justice and Federal Trade Commission.

The statement concludes that denying an exclusion order in this proceeding would promote competitive conditions in the U.S. economy and protect consumers’ interests by fostering certainty, lowering costs, and strengthening the innovation ecosystem.

Keywords: ITC, International Trade Commission, public interest, competitive conditions, consumers, SEP, FRAND, exclusion order

JEL Classification: K21, L40, L41, L63, O31, O34