Class 4

Class 4:  Deference or suspicion? Antitrust regulation and standard setting

The Weiser article deserves a careful read, for three distinct reasons: (a) it provides an excellent summary, at an appropriate level of detail for our purposes, of antitrust principles and cases applicable to standard setting, (b) it explores the critical, emerging challenge associated with the reality that SSOs operate in a global environment, and (c) Weisner himself recently joined the U.S. Department of Justice Antitrust Division as deputy assistant attorney general for international, policy and appellate matters (he had previously served in the Antitrust Division during the Clinton years); his views thus may gain traction within the Obama administration.

The other reading is a  joint report on Antitrust Enforcement and Intellectual Property Rights issued by the Federal Trade Commission and Department of Justice in 2007 . The 220-page Report is the result of years of research by the DOJ and FTC, including two dozen days of hearings in 2002.  I’ve assigned the chapter that focuses on standards.  I suggest that you read this more for high-level points; don’t worry about understanding all of the details.

Readings:

Weiser, Phil, Making the World Safe for Standard Setting (July 27, 2007). U of Colorado Law Legal Studies Research Paper No. 08-06. Available at SSRN: http://ssrn.com/abstract=1003432

U.S. Dept. of Justice & Fed. Trade Comm’n , Antitrust Enforcement and Intellectual Property Rights: Promoting Innovation and Competition (2007). Chapter 2 “Competition Concerns When Patents Are Incorporated Into Collaboratively Set Standards” only (pp. 33-56).  http://www.justice.gov/atr/public/hearings/ip/222655.pdf

Optional (but excellent and worth reading — probably would have assigned it as required if I had come across it earlier):

Kobayashi, Bruce H. and Wright, Joshua D., Intellectual Property and Standard Setting (August 24, 2009). George Mason Law & Economics Research Paper No. 09-40; ABA Handbook on the Antitrust Aspects of Standards Setting, 2010; George Mason Law & Economics Research Paper No. 09-40. Available at SSRN: http://ssrn.com/abstract=1460997

Also optional, but a good source for European developments (which I won’t address in much depth in class, but which are significant):

Geradin, Damien, Pricing Abuses by Essential Patent Holders in a Standard-Setting Context: A View from Europe (July 2008). Available at SSRN: http://ssrn.com/abstract=1174922

Discussion questions:

No advance discussion questions.

Slides:

Slides linked here (.pdf) and here (.ppt).