The Acting Assistant Attorney General Joseph Wayland delivered a
speech on Friday regarding how antitrust enforcement agencies can
"balance patent rights, competition and innovation in the
information age." Wayland covered familiar ground on
topics ranging from the dangers of patent hold-up to the importance
of patent holders' commitments to license essential patents on
F/RAND terms. He stressed that the enforcement agencies
continue to closely monitor the competitive impact of patent
portfolio acquisitions, particularly in the wireless
industry. He also reiterated the agencies' views about
the appropriate standards for injunctive relief and the impact on
competition of ITC exclusion orders to enforce standards essential
patents. Wayland's prepared remarks also offered some
specific suggestions about possible additions to the intellectual
property policies of standard setting organizations that would
limit opportunities to exploit the ambiguities of a F/RAND
licensing commitment. Suggestions included, for example,
requiring patent holders' make clear their F/RAND commitments
bind both the current patent holder and subsequent purchasers of
the patents. He also warned that even if patent holders
are not enforcing standard-essential patents, efforts to force
licensees to accept certain kinds of anti-competitive contract
terms might nevertheless trigger antitrust scrutiny. Wayland
said he has made it a priority to examine use or misuse of patents
that goes beyond standard-essential patents.
An interesting and growing debate in the antitrust arena is whether most favored nation ("MFN") pricing provisions are pro-competitive or anticompetitive. For many years, MFN provisions have been considered a fairly noncontroversial contract term included by purchasers in an attempt to assure that other buyers do not receive a more favorable price.
A well-attended program on antitrust treatment of "bundled pricing" and "loyalty discounts" at the American Bar Association Antitrust Section Spring Meeting highlighted the confusion generated by the antitrust law implications.
In remarks made this week at the International Competition Network annual conference, Federal Trade Commission (FTC) Chairwoman Edith Ramirez stated that health care will continue to be a top priority for the FTC.
An EU General Court (GC) judgment has considered the difficult issue of independent parallel behaviour by competitors under EU competition law, and in particular when this strays into a "concerted practice".
The U.S. Department of Justice ("DOJ") has reached a settlement with Anheuser-Busch InBev ("ABI") and Grupo Modelo S.A.B. de C.V. ("Modelo"), requiring ABI to divest Modelo’s entire U.S. business to Constellation Brands Inc. ("Constellation").
Microsoft v. Motorola is precedential only in the Western District of Washington, but at 207 thorough and well-reasoned pages, it provides a valuable roadmap and will likely be quite influential in future RAND cases in other U.S. and foreign jurisdictions.