[Brussels: 16 November 2017] IP Europe welcomes the recent comments made by the US Assistant Attorney General, Makan Delrahim, on the role of antitrust law in the context of standard setting organizations, or SSOs.
Mr Delrahim’s comments, made at USC Gould School of Law’s Center for Transnational Law and Business Conference last Friday, focused particularly on the importance of supporting innovation in standards and the use of anti-trust law in respect of licensing of Standard Essential Patents (SEPs), while noting the risk of collusive behaviours by both technology implementers and innovators within SSOs.
Recognition by Mr Delrahim of the importance of IPR and open standards technology, which enable the Digital Single Market and probably the most complex system created by mankind – the mobile and fixed communication system we all use everyday – is highly welcome.
Coincidentally, Mr Delrahim’s speech, was made on the same day that the European Commission was discussing new guidelines and European industrial policies licensing SEPs for 5G and Internet of Things cellular standards.
Francisco Mingorance, Executive Secretary of IP Europe, said:“We wholeheartedly welcome this signal from the DOJ that they will prioritise the safeguarding of longstanding FRAND principles against recent coordinated action of some implementers. In Europe, a decision to abandon this Communication – or to bring it back into line with its initially stated goals – can protect innovation, R&D investment, high-tech jobs and European leadership in 5G and IoT open standards.”
“let’s not forget what drives the hopes and dreams of so many innovators: the hope of making a technology that will improve the way people live”
“Enforcers have strayed too far in the direction of accommodating the concerns of technology implementers… and perhaps risk undermining incentives for IP creators”
“When implementers act together within a standard-setting organization as the gatekeeper to sales of products including a new technology, they have both the motive and means to impose anticompetitive licensing terms”
“SSO rules purporting to clarify the meaning of “reasonable and non-discriminatory” that skew the bargain in the direction of implementers warrant a close look to determine whether they are the product of collusive behavior within the SSO”
“Enforcers should carefully examine and recognize the risk that SSO participants might engage in a form of buyer’s cartel, what economists call a monopsony effect.”
“Antitrust enforcers should exercise greater humility and enforce the antitrust laws in a manner that best promotes dynamic competition for the benefit of consumers.”
About IP Europe
IP Europe brings together R&D intensive European companies and research institutes committed to innovation, from SMEs to global enterprises and non-profit research entities operating in a variety of industrial sectors. They all share a common goal: to maintain, at all policy levels, strong patent protection for innovators and support recognized fair, reasonable and non-discriminatory standardisation policies adopted by consensus that preserve fair compensation for innovators. IP Europe supports the use of Injunctive Relief against patent infringers and free riders that rely on R&D investments made by others to earn higher profits.
IP Europe was originally launched by Ericsson, Airbus and France Brevets. The Fraunhofer Gesellschaft participates in IP Europe in its capacity of academic advisor.