SEP Users Should Jettison Antitrust For Patent, Contract Law

Introduction

The Ninth Circuit's recent decision in FTC v. Qualcomm¹ was another major victory for patent holders in the world war over standard essential patents (SEPs). The court found the FTC failed to establish that Qualcomm's alleged breach of its obligations to license SEPs on fair, reasonable, and non-discriminatory (FRAND) terms amounted to an antitrust violation. Following similar reasoning, a Texas court dismissed auto supplier Continental's antitrust claims against patent pool Avanci and its telecom licensors.²

The FTC has asked the Ninth Circuit to take the Qualcomm case en banc, and the case may end up at the Supreme Court. But for now, these decisions, as well as decisions in the United Kingdom and Germany,³ show that implementers pursuing antitrust claims for FRAND disputes against SEP holders face an uphill battle. They also serve as reminders that implementers can and should turn to patent- and contract-based theories as they seek the upper hand