Partner Jay Jurata, head of our global Antitrust and Competition Law Practice, and associate Emily Luken have written an article entitled “Glory Days: Do the Anticompetitive Effects of Standards-Essential Patent Pools Outweigh Their Procompetitive Benefits?” a scholarly exploration of one of the hottest issues at the forefront of antitrust and IP. The article, which will be published in Volume 58:2 of the University of San Diego Law Review, offers an unprecedented examination of issues related to the licensing of standards-essential patents (SEPs) subject to a commitment to license on fair, reasonable, and nondiscriminatory (FRAND) terms.
In the article, Jay and Emily analyze how today’s SEP assertion environment calls into question some of the assumptions underlying the procompetitive nature of patents pools. As a result, the potential for anticompetitive harm associated with SEP pools is greater than previously realized. That environment, the article notes, has evolved substantially since the Department of Justice (DOJ) issued a series of business review letters in two decades ago — the glory days that laid the foundation for competition law treatment of SEP pools.
Now, due to creativity and increasingly aggressive behavior by some SEP owners and licensing agents acting on their behalf, it has become apparent that SEP pools present real anticompetitive risks that have not been fully appreciated or examined in-depth. The article tells that story and fills in the gaps to account for changes and developments that were not considered at the time the DOJ issued the business review letters.
The article also provides recommendations for courts, competition law enforcement authorities, and patent pools to address these significant anticompetitive risks.