Standard-Essential Patents: the U.S. Antitrust Enforcement Experience

Abstract

Many interoperability standards and patent licensing arrangements, especially those in information and communication technology sectors, are global in scale and scope. When standards incorporate and use patented technologies, the assertion of standard-essential patents in a single jurisdiction can potentially upset standard-specific investments made by implementers in numerous other jurisdictions around the world. Antitrust enforcement relating to standard-essential patents must therefore balance the rights and interests of innovators and implementers alike because both sets of actors play important roles in bringing the benefits of standardized products and services to consumers. Innovators who have made commitments to license their standard-essential patents are entitled to a reasonable rate of return for the use of their patented technologies in standards. What they may not do, however, is demand a higher rate of return by threatening to block the use of their technologies by implementers who are willing to enter into licenses for their patents. As the U.S. antitrust agencies have shown, sound antitrust enforcement in the standard setting arena should seek to preserve the incentives of innovators that contribute patented technology to standards as well as those of implementers that bring valuable products and services to market using those standards.