Conduct in Standard Setting Can Violate the Sherman Act

by Lee Gesmer on October 17, 2007

Antitrust. It shouldn’t be a surprise that it might be illegal under the antitrust laws for a company with a 90% marketshare in a key, patented technology to agree as a member of a standards developing organization that it would license its technology on “fair, reasonable and non-discriminatory” (or FRAND) terms if that technology is included in the standard, and then, after adoption, violate that pledge. Nevertheless, a federal district court held that Qualcomm could not be held liable under the antitrust laws under these facts. In an important decision at the intersection of standard-setting and antitrust law the Third Circuit disagreed, reversing the lower court. Andy Updegrove addresses the case (and provides a link to the decision) in his article here, so I’ll defer to his extensive discussion and analysis.

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