Bosch/SPX: FTC Sends Tough Message Regarding Standards-Essential Patents Through Merger Challenge

The Federal Trade Commission announced on Monday a proposed consent decree in connection with Robert Bosch GmbH's acquisition of a division of SPX Corporation. This action is notable for several reasons:

• The Commission made important statements about its enforcement intentions regarding alleged breaches of "FRAND" commitments for declared standards-essential patents (SEPs). Most importantly, the Commission said, in appropriate circumstances, it will use its authority under Section 5 of the Federal Trade Commission Act to challenge attempts by holders of FRAND-committed SEPs to obtain injunctions against implementers of standards.
• The FTC is using Section 5, which prohibits "unfair methods of competition" and "unfair or deceptive acts or practices," to address conduct that the Commission acknowledged is not necessarily proscribed by the Sherman Act.