Handbook on the Antitrust Aspects of Standards Setting

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American Bar Association, 2004 - Cooking - 188 pages
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This Handbook is particularly important because of the increasingly critical role standards play in our economy. Within the broad scope of this Handbook are quality standards, informational standards, uniformity standards, interoperability standards and non-products standards such as professional conduct standards. These standards promote innovation, productive efficiency, and market structure. The Handbook describes how the antitrust laws balance these procompetitive effects against the potential mususe of standards, and the sandard-setting process, to create barriers to entry, retard innovation, raise rivals' cists, facilitate collusion, and protect market position. The Handbook also recognizes the increasing role played by governments - federal, state and interantional - in the promulgation of standards, and how that impacts the application of the antitrust laws. Finally, the Handbook addresses the remedies available to redress the effects of standards-related activity found to be unlawful.
  

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Contents

Introduction
1
A The Source of Standards
3
1 Governmental Standards
4
3 Unilateral or Marketplace Standards
6
1 Quality Standards
7
2 Informational Standards
8
3 Uniformity Standards
9
4 Interoperability Standards
10
B Predatory Pricing as a Strategy to Win the Standards War
87
C Product Preannouncement to Forestall the Emergence of a Competing Standard
90
D Refusals to Provide Access to or License a Standard
92
2 Compelling Access to a Standard under the Essential Facilities Doctrine
94
3 Refusal to License Intellectual Property Underlying or Constituting the Standard
97
E Leveraging Control of a Standard to Affect Other Markets
99
2 Incompatibility and Interoperability
100
3 Other Leveraging Practices Relating to Standards
104

5 Professional Conduct and Certification Standards
11
C Standards and Network Effects
12
D Overview of Antitrust Concerns
14
1 Cooperative Standards Setting and Antitrust Prohibitions Against Unreasonable Concerted Action
15
2 Unilateral Standards Setting and Antitrust Constraints on Monopolization
17
3 Government Imposed Standards
19
4 Remedies
21
Cooperative Standards Setting
23
A Threshold Requirements for an Antitrust Challenge to Collaborative Standards Setting
25
1 Causation and Antitrust Injury
26
2 An Agreement in Restraint of Trade
28
B Standards Setting under the Per Se Rule
30
1 Naked Restraints
32
2 Erosion of the Per Se Rule as Applied to Standards Setting
34
C Standards Setting under the Rule of Reason
39
1 Modes of Analysis
40
a The Quick Look
41
b Market Analysis
44
2 Theories of Anticompetitive Effects
47
b Selection and Enforcement of the Standards
52
c Corruption of the StandardSetting Process
56
1 Vote Stacking and Other Irregular Procedures
57
2 Patent Ambush Claims
60
d Restrictions on Access to the Standards
64
e Standards Affecting Incentives to Compete
67
2 Monopsony and Buyers Cartels
70
3 Patent Pooling
72
4 Patent GrantBacks
74
3 Procompetitive Effects and Balancing
76
Unilateral Conduct Relating to Standards
81
A Vertical Foreclosure to Establish or Maintain a Standard
83
F Anticompetitive Litigation to Enforce or Oppose a Standard
106
Standards Setting by Governmental or QuasiGovernmental
107
B State Action
113
2 StandardSetting Activity under State Action Doctrine
117
a Express State Adoption of the Standard
118
b Private Standards Setting Pursuant to State Policy
119
C Solicitation of Government Action
121
I Basics of Noerr Immunity
122
2 Qualifications on Noerr Immunity
124
b Commercial Exception
128
c Independent Conspiracies
129
3 Standards Setting and Noerr Immunity
131
b Subsequent Application of Noerr to Standards Setting
133
D Governmental Immunities and Foreign Standards Setting
137
2 Petitioning Foreign Governments
138
Remedies and Standards Setting
141
A Damages in StandardSetting Cases
142
B Equitable Relief in StandardSetting Cases
145
1 Equitable Relief in Collaborative StandardSetting Cases
146
b Requiring Affirmative Efforts to Mitigate Competitive Harm Caused by Collaborative Standards Setting
148
c Mandating Access to the StandardSetting Process or Certification
149
d Modifying a StandardSetting Organizations Criteria
152
e Compulsory Access to Intellectual Property Necessary to Practice a Unilateral Standard
155
2 Equitable Remedies in Unilateral StandardSetting Cases
158
b Ensuring Competing Standards Are Not Disadvantaged
162
2 Structural Remedies
165
C Remedies Against Individuals
167
Appendix
169
Table of Cases
177
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