SEP Antitrust Analysis — More Complex Than It Seems
Law360, New York (December 19, 2012, 1:19 PM EST) -- In its recent decision allowing the Robert Bosch GmbH acquisition of SPX Service Solutions U.S. LLC, the Federal Trade Commission, in part, conditioned approval of the deal on Bosch's agreement that it would not attempt to enforce its standard-essential patents (SEPs) by way of court-imposed injunctions (including at the U.S. International Trade Commission) against alleged infringers. This precondition reflects the FTC's conviction that SEPs endow patent holders with potential market power (as they lock in licensees) and that injunctions levied against alleged infringers serve anti-competitive purposes by either excluding (or threatening to exclude) competition from the relevant market or extorting excessive royalties in settlement (known as "holdup")....
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