The Relationship Between Standards Development, Patents and Antitrust

The Relationship Between Standards Development, Patents and Antitrust

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From the very outset, there is a tension between the standardization, and both patent and antitrust law. Antitrust laws seek to encourage competition and stamp out anti-competitive behavior, with many theories and laws developed over time to largely regard industry cooperation as inherently anti-competitive. Of course, standards development requires some degree of cooperation among market participants who must agree on the standard itself so technologies that benefit from ubiquity can truly offer cross platform compatibility. Meanwhile, patents confer a limited right to exclude for a limited time, and during that time owners of the patents on the standard essential innovations agree to provide their technologies based on fair, reasonable and non-discriminatory terms in order to allow for widespread adoption. Compounding these issues are the problems of holdup and holdout, strategies which can appear in the real world.

But are antitrust laws even applicable to these private, contract disputes between parties where the substance of the disagreement arises from a contractual obligation offer a license? Is Antitrust the right tool for an implementer to challenge the rate being offered by an SEP holder? Is Antitrust law a mechanism for implementers to seek the reduction in royalties, and if so when?