Experts on SEPs and the Role of Antitrust


December 4, 2012
Patent System Gears

On November 29, the Washington Legal Foundation hosted a media briefing on standards-essential patents and the role of antitrust agencies. The briefing featured George Mason University Law Professor Adam Mossoff, American University Law Professor Jorge Contreras and Jim Kulbaski of Oblon Spivak. The comments made by the experts highlighted the importance of addressing the issue based on history and facts, not outdated economic hypotheticals and rhetoric. Below are some key points we noted from the briefing.

Kulbaski, a former patent examiner at the US Patent and Trademark Office and a specialist in patent prosecution, kicked off the proceedings by explaining that while patent litigation disputes in the headlines seem like a recent phenomenon, they are actually nothing new. In fact, he said, every time a new industry emerges, it is closely followed by patent disputes. He used examples such as the sewing machine wars of the 1850s, automobile manufacturing in the early 1900s, and aircraft technology manufacturing in the 1910s.

Contreras, an associate law professor at American University and consultant at Contreras Legal Strategy, LLC, underscored the critical importance of standards in the smartphone space; economists, he told the audience, generally agree that interoperability yields tremendous network efficiencies and that markets favor certainties established by standards. He believed that interoperability is at least as important as innovation and should be incentivized as such. He also argued that licensing under FRAND (fair, reasonable and non-discriminatory) terms is not as clear-cut as people are led to believe since participants have different notions about 'fair' and 'reasonable' and how it should be applied. He believed that while antitrust enforcement agencies can play a role, they must proceed with caution as it may cause uncertainties and confusion.

GMU professor Mossoff made a strong argument that there is very little factual evidence that patent disputes have harmed consumers and innovation. Most of this current debate surrounding a patent crisis, he stated, was high-level rhetoric, devoid of historical and empirical analysis. Standard-setting bodies, particularly in the mobile telecommunications space, have functioned well for decades delivering fast-paced innovation as exemplified by what many of us carry in our pockets today. Regulatory interventions should be discouraged, he argued, as they have generally hurt innovation in the past.

You can watch the entire briefing here: Washington Legal Foundation Media Briefing (Silverlight Plug-In Required)

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