Antitrust Law, Variant Patent Holdup Theories, and Injunctive Relief in Standard Setting Organizations

Rafael Rivera, Jr., Law Clerk-Illinois Circuit Court

6/11/2014
(Original Publish Date: 2012)

After a brief discussion on the standard-setting process and on RAND's efficiency-enhancing characteristics, this Article explores antitrust’s role in regulating opportunistic behavior arising in standard setting organizations. In doing so, it first provides an overview of the opportunistic conduct — namely, deception during the standard-setting process, and rescission of good-faith RAND commitments. To be sure, both can be defined as patent holdup and thus may result in higher downstream prices. But by focusing on the distinct characteristics underlying each form of conduct, the Article prescribes an active role for antitrust in cases involving deception-based holdup, while also explaining why such oversight is ill-suited for RAND-based holdup. After this, it discusses the legal implications of seeking injunctive relief after agreeing to license standard essential patents on RAND terms. A brief conclusion follows.