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Anticompetitive practices

The US DOJ allows a standards association’s new patent policy for wi-fi standards, finding it potentially pro-competitive (IEEE-SA)
Constantine Cannon (Washington)
Feds Green-Light Institute’s New Patent Policy For Wi-Fi Standards, Finding It Potentially Procompetitive* The Antitrust Division of the U.S. Department of Justice announced on Monday that it would not challenge recent revisions to the Patent Policy of the Institute of Electrical and (...)

The US Court of Appeal for the 5th Circuit decides on whether a "standard-setting" association should be considered as a single entity and dismisses the case for lack of evidence (Abraham & Veneklasen / AQHA)
Constantine Cannon (Washington)
Fifth Circuit Rejects Jury Verdict Of Quarter Horse Conspiracy, Finding Elite Animal Registries To Be A Horse Of A Different Color* A panel of the U.S. Court of Appeals for the Fifth Circuit has reversed a jury’s verdict that a horse breeding association illegally conspired with some of its (...)

The US Court of Appeal for the 5th Circuit leaves open the possibility that a single entity could conspire with its own members or sub-parts (Abraham & Veneklasen / AQHA)
Siemens (New York)
Patterson Belknap Webb & Tyler (New York)
When Can an Organization Conspire with Itself?* The U.S. Court of Appeals for the Fifth Circuit last week reversed a jury verdict and rendered judgment for American Quarter Horse Association (AQHA) in a much-contested antitrust case about AQHA’s ban of cloned horses. The Fifth Circuit left open (...)

Anticompetitive practices and intellectual property: Standardization, patents and frand
Latham & Watkins (Paris)
Clifford Chance (Paris)
CRA International (London)
The setting of standards through standard-setting organisations gives rise to two main kinds of problems: royalty-stacking, due to the complementarity of the IPRs involved and hold-up. FRAND commitments are meant to deal with the second issue only. DG Competition is currently investigating (...)


The EU Commission consults on commitments to license on FRAND terms regarding use of standard essential patents (Samsung SEPs)
Garrigues (Brussels)
Samsung offers commitments to appease DG Comp* The most important (antitrust-related) news last week was the European Commission’s announcement that it will market test a commitment proposal submitted by Samsung regarding the enforcement of its SEPs (Standard Essential Patents) related to (...)

The EU Commission sends statement of objections to a telecom operator over standard essential patents (Motorola Mobility)
Van Bael & Bellis (Brussels)
White & Case (Brussels)
On 6 May 2013, the European Commission announced that it had formally sent Motorola Mobility a Statement of Objections (SO) over the company’s alleged misuse of mobile phone standard essential patents (SEPs). The Commission believes that Motorola Mobility abused its dominant position in (...)

The EU Commission sends a statement of objections to a mobile operator over alleged misuse of mobile phone standard essential patents (Samsung)
Van Bael & Bellis (Brussels)
On 21 December 2012, the European Commission announced that it had sent Samsung a Statement of Objections (“SO”) over its alleged misuse of mobile phone standard essential patents. In January 2012, the Commission had opened a formal investigation against Samsung Electronics following (...)

The EU Commission sends statement of objections regarding its alleged abuse of mobile phone standard-essential patents (Samsung)
Ashurst (Milan)
European Commission sends Samsung Statements of Objections regarding its alleged abuse of mobile phone standard-essential patents* On 21 December 2012, the European Commission sent a Statement of Objections to Samsung, based on concerns that Samsung’s conduct in seeking injunctions against (...)

The EU General Court dismisses appeal against Commission rejection of abuse complaint in the Irish whisky market (Protégé / Pernod Ricard)
Van Bael & Bellis (Brussels)
On 13 September 2012, the General Court dismissed the appeal lodged by Protégé International Ltd against a European Commission decision to reject a complaint alleging breach of Article 102 TFEU by Pernod Ricard. In its complaint to the Commission, Protégé had alleged that Pernod Ricard (...)

The European Commission opens an investigation against south Korean producer of smart phones and tablet computers for abusive use of its essential patents for 3G mobile and wireless telecommunications system standard (Samsung)
Criterion Economics (Washington)
The European Commission opens an antitrust investigation against Samsung Electronic* On January 31, the European Commission announced the opening of a formal antitrust investigation against Samsung Electronic, the South Korean producer of smartphones and tablet computers. The case concerns the (...)

The EU General Court examines an appeal against a Commission decision in the chip manufacturing sector (Hynix Semiconductor)
Van Bael & Bellis (Brussels)
Practising Law Institute (New York)
The details of two appeals lodged at the General Court (“GC”) by Hynix Semiconductor (“Hynix”) against two Commission decisions concerning US chip manufacturer Rambus were published in the Official Journal of 5 June 2010. In December 2009, the Commission issued a decision closing an investigation (...)

The European Commission renders legally binding commitments offered by US software undertaking to lower memory chip royalty rates (Rambus)
European Commission - DG TRADE
European Parliament (Luxembourg)
"Patent ambush in standard-setting: the Commission accepts commitments from Rambus to lower memory chip royalty rates"* I. Introduction Standardisation involves competitors sitting around a table agreeing technical developments for their industry. Normally, antitrust rules do not allow (...)

The ECJ Advocate General Bot recommends dismissing a recycling company’s appeal for abusive judgment (Der Grüne Punkt - Duales System Deutschland)
Van Bael & Bellis (Brussels)
Practising Law Institute (New York)
On 31 March 2009, Advocate General Bot delivered his opinion in the appeal of Duales System Deutschland (“DSD”) against a 2007 CFI judgment holding that the German recycling company’s licensing scheme for its “Green Dot” logo constituted an abuse of a dominant position. The Advocate General (...)

The European Court of First Instance examines a recourse against Commission’s decision to reject complaint against a leading alcohol manufacturer (Protégé International)
Van Bael & Bellis (Brussels)
On 16 May 2009, a notice was published in the Official Journal of the EU announcing that Protégé International is taking the European Commission to court over its January 2009 decision to reject a competition law complaint brought by Protégé International against Pernod Ricard. Protégé (...)

A US Court of Appeals overturns an FTC’s ruling in the computer memory market for failing to prove unlawful monopolization (Rambus)
Akin Gump Strauss Hauer & Feld (Washington)
Winston & Strawn (New York)
Winston & Strawn (New York)
The Court of Appeals for the District of Columbia Circuit has overturned the Federal Trade Commission’s ruling against Rambus, Inc. (“Rambus”), finding that the Commission did not prove that Rambus’s failure to disclose certain intellectual property interests to a standard-setting organization (...)

A US Court of Appeals sets aside FTC’s order holding that the Agency failed to prove antitrust violation in the computer memory industry (Rambus)
Skadden, Arps, Slate, Meagher & Flom (Washington DC)
Skadden, Arps, Slate, Meagher & Flom (New York)
On April 22, 2008, the U.S. Court of Appeals for the District of Columbia Circuit held in Rambus Inc. v. FTC, No. 07-1086, that the FTC failed to prove that Rambus Inc. violated antitrust law when it participated in a trade organization’s setting of industry technology standards without (...)


The US FTC requires FRAND commitments as part of merger settlement in the industry of automotive diagnostics (SPX / Bosch)
Baker McKenzie
Dechert (Washington)
FTC Requires FRAND Commitments as Part of Merger Settlement with Broad Implications* On November 26, 2012, the FTC and Robert Bosch GmbH entered into a Consent Agreement that resolved the FTC’s inquiry into Bosch’s $1 billion acquisition of SPX Services. As part of the Consent Agreement the FTC (...)

The EU Commission clears the acquisition of a smartphone and tablet manufacturer’s patent pool by a leading smartphone operating system developer (Google / Motorola Mobility)
Womerang (Monterrey)
“Honor your commitments” - The patent gatekeeping problem after antitrust regulators in the United States and the European Union cleared Google’s acquisition of Motorola’s patent pool* On February 13, 2012, the Department of Justice’s Antitrust Division (the Division) announced its decision to (...)


The US Congress adopts significant antitrust amendments within the Protection of the National Cooperative Research and Protective Act
Jones Day (Washington DC)
For much of the last decade, virtually all antitrust policy development arising out of Washington has come from the enforcement agencies. The other traditional Washington actors responsible for key shifts in antitrust policy and enforcement-Congress and the Supreme Court-have been largely (...)


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