Abstract
The activities of Standard Setting Organizations (SSOs) in determining product standards, especially those covered by Standard Essential Patents (SEPs), create opportunities for anti-competitive and exclusionary behavior, including “hold-ups.” In the United States, antitrust laws have been used to attempt to eliminate such behavior and to minimize its effects. Ironically, concerns about the interpretation of those same laws have made SSOs reluctant to adopt policies that could make their processes more efficient. This chapter looks at the anti-competitive and exclusionary risks posed by SSOs and how American antitrust laws have been used to deal with those risks. The chapter also explores how uncertainty about the application of antitrust and competition laws directed at collective activity may be standing in the way of SSOs adopting procedures and policies that might help avoid those risks and create greater certainty and efficiency. It shows how American antitrust laws and similar competition laws can provide SSOs greater freedom than often believed to, for example, establish maximum royalty rates and determine mandatory licensing terms for SEPs. The chapter concludes with recommendations to help assure that SSOs do not use their powers for anti-competitive purposes.
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