In this issue:
We’re still swimming in the murky waters of patents in this second of two issues on antitrust and patents, compiled with Danny Sokol’s guidance. These articles continue exploring the turmoil with in-depth analyses on, among other issues, the importance of royalty stacking, the Chinese Qualcomm decision, very diverse opinions on the IEEE BRL, the patent ecosystem, and differentiating between SEPs and non-SEPs.
Once finished, check out our previous issue for a complete picture of the antitrust/patent pool. The water gets calmer and clearer once you’re immersed.
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Antitrust and Patent Issues, Part II
Standards, Royalty Stacking, and Collective Action
The Federal Circuit should explicitly recognize the presence of royalty stacking as a factor impacting the potential reasonableness of patent royalties. Jorge L. Contreras (Univ. of Utah)
The Application of China’s Anti-Monopoly Law to Essential Patent Licensing: The NDRC/QUALCOMM Action
It is the range of behavioral remedies agreed to that may well have the greatest long-term significance. James F. Rill & James Kress (Baker Botts)
Updating a Patent Policy: The IEEE Experience
Using its procedures, IEEE-SA was able to achieve consensus on its policy update. Michael A. Lindsay (Dorsey & Whitney ) & Konstantinos Karachalios (IEEE Standards Association)
IEEE Business Review Letter: The DOJ Reveals Its Hand
In this case, the changes appear to reflect a policy choice that favors technology users at the expense of patent holders. Hugh M. Hollman (Baker Botts)
The 2015 DOJ IEEE Business Review Letter: The Triumph of Industrial Policy Preferences Over Law and Evidence
The IEEE BRL is deeply flawed and even disturbing. Roy E. Hoffinger
Original Sin
While SEPs could be a potential predator in the hands of a firm that wants to raise the costs of its rivals, the Administration’s intervention on SEP enforcement, while doing nothing with respect to non-SEPs, can have three unintended consequences. John D. Harkrider (Axinn, Veltrop & Harkrider)
Apples and Oranges: Comparing Assertions of SEPs and Differentiating Patents from an Antitrust Perspective
Avoiding confusion between SEPs and differentiating patents is critical to ensuring that the goals of both the antitrust and patent systems are achieved. Jay Jurata & Adya Baker (Orrick, Herrington & Sutcliffe LLP)
