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FTC Testifies Before Congress on Impact of Patent Hold-up on Competition and Standard-Essential Patents

by Karne Newburn On July 30, 2013, Suzanne Munck, Chief Counsel for Intellectual Property at the Federal Trade Commission (FTC), testified before the Senate Committee on the Judiciary, Subcommittee on Antitrust, Competition Policy and Consumer Rights, on the impact of patent hold-up on competition, and standard-essential patents (SEPs).  The hearing covered standard-essential patent disputes and antitrust law.  Ms. Munck’s testimony focused on SEPs that a patent holder has committed to license on reasonable and non-discriminatory (RAND) terms.  The hold-up, in this context, is the potential that a SEP holder violates its RAND commitment, and then uses the leverage acquired from the standard setting process to negotiate higher royalties or other favorable terms after the standard’s adoption than it could have beforehand.  She explained that patent hold-up is harmful because it can deter innovation, discourage the adoption of...

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U.S. International Trade Commission Grants Injunctive Relief on Standard Essential Patent

by William Diaz and Lincoln Mayer The U.S. International Trade Commission has issued an exclusion order barring importation of certain older model Apple products for infringing a Samsung patent. The case is significant because the infringed patent was standard essential and encumbered by a commitment to license on fair, reasonable and non-discriminatory terms. Patent holders and potential defendants should carefully monitor further developments regarding the availability of injunctive relief for infringement of standard essential patents. To read the full article, click here.

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Western District of Washington Sets FRAND Royalty Rates and Range for SEPs

by Nick Grimmer and Stefan Meisner Last week in Microsoft v. Motorola, the U.S. District Court Western District of Washington became the first U.S. court to set fair, reasonable, and non-discriminatory (FRAND or RAND) royalty rates and range for standard-essential patents (SEPs).  See Findings of Fact and Conclusions of Law, Microsoft v. Motorola, 2:10-cv-01823-JLR (W.D. Wash. Apr. 25, 2013). The suit stems from Microsoft’s allegation that Motorola’s offers to license certain Wi-Fi and video compression SEPs was too high and therefore violated Motorola’s contractual RAND commitments.   This issue is arising with greater frequency in antitrust/IP matters when patent licensing is involved with licensors who are standards setting organizations as well. Microsoft v. Motorola is important because it is the first thoroughly reasoned decision by a U.S. federal district court that developed a framework for courts to assess FRAND terms...

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A New Front in The Patent Wars: CJEU Asked for Guidance on Limits to Injunctive Relief

by Wilko van Weert, Philipp Werner and David Henry The patent wars between large technology companies continue unabated.  The Court of Justice of the European Union (CJEU) is set to provide guidance on the antitrust rules when holders of standard essential patents seek injunctive relief. To read the full article, click here.

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