RE: [PP-DIALOG] Application of per se rule to ex ante joint conduct
Not sure your very careful attempt to distinguish the import of this
case from the discussion of joint ex ante is terribly meaningful, or
would be found persuasive by either a court or a plaintiff's lawyer who
seeks to address ex ante conduct that eliminates the inclusion of a
patented technology in a standard or deprives a patent owner of
flexibility in licensing terms. Not suggesting that the allegations
of the case have merit, but there are quite a number of companies that
now are spending a lot of money and time litigating for what might be
considered competitively benign conduct.
Happy to discuss these points further, but one fact I think you will
agree is that especially in the 3GPP context, standards are continuously
being revised, and there is no simple conclusion that can be reached
when a standard is final. So, in connection with this specific case,
the elimination of of Golden Bridge's technology was part of the
evolution of the 3GPP standard.
Accordingly, the key take away might be that nice theories can always be
justified, but legal claims and litigation are messy and unpredictable
-- which leads to high costs and less efficiency in standards
development.
Speak to you soon.
Richard S. Taffet, Esq.
Bingham McCutchen LLP
399 Park Avenue
New York, New York 10022-4689
T: (212) 705-7729
F: (212) 702-3603
email: richard.taffet@bingham.com
cell: (914) 582-2477
-----Original Message-----
From: Gil Ohana (gilohana) [mailto:gilohana@cisco.com]
Sent: Thursday, March 09, 2006 4:34 PM
To: Taffet, Richard S.; PP-DIALOG@listserv.ieee.org
Subject: RE: [PP-DIALOG] Application of per se rule to ex ante joint
conduct
Richard, thank you for providing the Golden Bridge opinion. As I read
the opinion, it stands for the (uncontroversial) position that a group
refusal to deal among competitors that collectively have market power
can violate Section 1 of the Sherman Act. Aside from the fact that the
particular group refusal to deal alleged happened in the context of
standard-setting, I'm having trouble understanding how the case relates
to (as the title of your e-mail states) "ex ante joint conduct". Per
the facts of the opinion, the discussion among the defendants that led
to Golden Bridge's technology being dropped as an optional feature of
the 3GPP standard occurred after the 3GPP standard had already been
approved by 3GPP. See Opinion at 2 ("In 1999 cPCH [Golden Bridge's
patented technology] was adopted by 3GPP as an optional part of the 3GPP
standard."). The allegedly anticompetitive acts Golden Brdge is
complaining of did not occur until years later.
If your goal is to remind participants in IEEE standard-setting that
antitrust issues swirl around standard-setting, then the Golden Bridge
opionion is a useful reminder of that point. But if (as I suspect from
the title of your e-mail) your goal is to suggest that the antitrust
risks standards bodies or their participants face are increased by the
adoption of those bodies of ex ante disclosure rules, then I must admit
that the support the Golden Bridge opinion provides for that proposition
is escaping me.
Gil Ohana
Director, Antitrust and Competition
Cisco Systems, Inc.
300 E. Tasman Drive
MS 10/2
San Jose, CA 95134
United States of America
Phone: +1 408 525 2853
Mobile: +1 408 203 5301
E-mail: gilohana@cisco.com
-----Original Message-----
From: Taffet, Richard S. [mailto:richard.taffet@BINGHAM.COM]
Sent: Thursday, March 09, 2006 11:27 AM
To: PP-DIALOG@listserv.ieee.org
Subject: [PP-DIALOG] Application of per se rule to ex ante joint conduct
The recent decision from the United States District Court for the
Eastern District of Texas is another example where joint ex ante
standards conduct relating to IP was alleged to violate the antitrust
laws, including under a per se theory. In this case, defendants' motion
for summary judgment was denied, including on the ground that per se
treatment might be appropriate. Even without the issue of whether the
conduct should be considered under a per se or rule of reason approach,
the fact is the case is now going to trial and will involve all of the
costs and uncertainties that necessarily result.
<<show_case_doc.pdf>>
Richard S. Taffet, Esq.
Bingham McCutchen LLP
399 Park Avenue
New York, New York 10022-4689
T: (212) 705-7729
F: (212) 702-3603
email: richard.taffet@bingham.com
cell: (914) 582-2477
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