Don, will this clause be discussed at the
upcoming PatCom meeting? With all due respect, I am concerned that the
wording in what was ops-manual-clause 5-3-9-v3.doc does not sufficiently
delineate what activity is permitted when and under what rules or parameters. For
example, can proposed licensing terms be discussed at a technical committee
meeting and, if so, what are the procedures governing that activity?
Many thanks,
Amy
From: Don Wright
[mailto:don@LEXMARK.COM]
Sent: Tuesday, March 14, 2006 1:44
PM
To: PP-DIALOG@listserv.ieee.org
Subject: Re: [PP-DIALOG]
Application of per se rule to ex ante joint conduct
Amy, et al:
If you examine the agenda for the December 5th PatCom Meeting
(http://standards.ieee.org/board/pat/1205patagen.html) and look at the
attachment to agenda item 5.3, you'll find a ZIP file containing a document
named ops-manual-clause-5-3-9-v3.doc. This was proposed to address the
issue of allowing the disclosure of licensing rates but not allowing group
negotiation of those rates at a standards development meeting. PatCom
could decide otherwise at any time but the committee has been heading toward
your (a) item below and not your (b) item.
(BTW: Due to recent changes made in the Standards Board Operations Manual
(http://standards.ieee.org/guides/opman/index.html), that clause is now 5.3.8)
|
|
"Amy Marasco (LCA)"
<amarasco@microsoft.com>
Sent
by: PP-DIALOG@ieee.org
03/12/2006 01:24 PM
|
To: "Skitol, Robert
A." <Robert.Skitol@DBR.COM>, <PP-DIALOG@listserv.ieee.org>
cc:
Subject: RE: [PP-DIALOG]
Application of per se rule to ex ante joint conduct
|
I
guess I am a little confused by the exchange of e-mails in this
string. I am wondering if there is any
degree of consensus around the
notion that there is a difference between:
(a) the disclosure of possible licensing terms (I
say "possible" because
it is likely that not all licensees will end up
with the exact same
license), and
(b) the discussion or negotiation of such terms as
a group under the
auspices of a standards body or as part of a
standards-setting activity.
In other words, is there any consensus that the
PatComm should continue
to debate the former, but that IEEE should
expressly prohibit the
latter?
My reading of the Hydrolevel case is that ASME was
held liable because
it permitted arguably anti-competitive conduct
under its roof and under
its "apparent authority". Doesn't
it seem that, based on the Hydrolevel
and Golden Bridges decisions, IEEE as a
standards-setting organization
would better protect itself and its members from
possible antitrust
claims by prohibiting group discussions or
negotiations of commercial
licensing terms under its auspices than by
facilitating such activity?
Whatever IEEE determines are the appropriate
parameters, I think that
they should be spelled out very clearly so that
everyone understands
exactly what activity is permitted under IEEE's
rules and what is not.
I suspect that we can all agree that any ambiguity
in this regard would
be problematic.
-----Original Message-----
From: Skitol, Robert A.
[mailto:Robert.Skitol@DBR.COM]
Sent: Friday, March 10, 2006 9:36 PM
To: PP-DIALOG@listserv.ieee.org
Subject: Re: [PP-DIALOG] Application of per se
rule to ex ante joint
conduct
Richard conflates the idea of
encouraging unilateral disclosure
of material license information -- the main
proposal now before the
IEEE's PatCom -- with "collective
negotiation" and "collusive" conduct
of the kind alleged in the Golden Bridges case,
which nobody is now
advocating for the IEEE. There is no credible
basis whatsoever for any
suggestion that the unilateral disclosure policy
idea now before PatCom
would increase antitrust risk or any other
litigation exposure to IEEE
or participants therein. To the extent the
proposal would result in
participants' disclosures of more license
information during standard
setting, it would do precisely what (a) Congress
expressly encouraged
SDOs to do in its enactment of the SDOAA two years
ago (see House
Report) and (b) both Assistant Attorney General Pate
and FTC Chairman
Majoras expressly encouraged SDOs to do in their
speeches within the
past year. Numerous published in-depth analyses
(many cited in Chairman
Majoras's speech) confirm the complete antitrust
legality as well as
affirmative desirability of more meaningful
information disclosures
along these lines. I am unaware of even a single
contrary analysis,
published or otherwise, that even begins to refute
the supportive
literature on this subject. As already noted, both
enforcement agencies
endorse the idea of an unqualifiedly
"good" result from more rather than
less material information being available during a
standard-setting
proceeding.
Richard's suggestion of an
antitrust problem with IEEE's adoption
of a definition of "reasonable" is equally
vacuous. IEEE already
encourages patent owners to make RAND
commitments. How can it suddenly
become an antitrust problem to explain or clarify
what RAND is intended
to mean for this purpose? Is the world better off
with controvery and
confusion over what RAND
means? That is a formula for more litigation of
the sort that is already burdening IEEE and other
SDOs' standards.
The irony is that, while
policy changes of the kind now under
consideration would entail no new legal risk of
any kind, failure to act
on them would leave unaddressed the all-too-real
existing risk of
abusive patent holdup conduct in connection with
IEEE standards. This is
a reality of the status quo that has already
generated litigation
messes, past and present. No need to get more
specific about them unless
Richard wants to do so. Suffice it to say that
failure to address in any
manner existing conditions enabling those disputes
to have evolved and
enabling
more such disputes to arise in the future is nothing less than
irresponsible.
Instead of chasing antitrust
ghosts boo-hooing about any move
forward, we should worry more about exposure from
(a) continued
collective suppression of highly material license
information during
standard setting; and (b) continued collective
refusal to adopt measures
to prevent anticompetitive manipulations of IEEE
processes. Grounds for
real concern on those fronts can be found in (a) United States
v.
National Society of Professional Engineers, 435 U.S. 679
(1978); and (b)
American Society of Mechanical Engineers v.
Hydrolevel Corp., 456 U.S.
556 (1982).
-----Original Message-----
From: Taffet, Richard S.
[mailto:richard.taffet@BINGHAM.COM]
Sent: Friday, March 10, 2006 3:32 PM
To: PP-DIALOG@LISTSERV.IEEE.ORG
Subject: Re: [PP-DIALOG] Application of per se
rule to ex ante joint
conduct
Gil
Thank you for your comments.
First, it may be that your perspective is focused
narrowly on the agenda
posted for the March 27 meeting. If so, I
can see how you are having
trouble in understanding how the Golden Bridges
decision may have an
impact on discussions at the IEEE PatCom, and how
the decision may cause
some concern even with the issues that have been
teed up for the next
meeting.
However, we certainly have no control over how the
agenda is set, or how
the PatCom is going to tackle all of the issues
that have been raised
over the past 9 to 10 months. As you
commented yesterday, neither you
nor I have any vote in what the PatCom does, and
the Chair has made it
clear that he is not bound to abide by any
consensus of interested
parties. Accordingly, I think it is very
important for all interested
parties and the IEEE organization to be sensitive
to how specific issues
that might be on the instant agenda will lead to
the discussion of
future issues that have already been identified
and proposed for
discussion. Included in this group of issues
that may be discussed in
the future is a policy that would have license
terms decided by "[a]
group of licensees negotiating collectively with
owners of competiting
technologies." (source: June 2005
submission to DOJ and FTC). As you
pointed out in connection with that possibility
there may be competitive
justifications for that type of arrangements, but
whether there are or
not would not change the fact that a per se
antitrust claim could be
asserted in connection with such conduct, and
depending on the pleading
such a claim could very easily survive a motion to
dismiss, or applying
the Golden Bridges' type of reasoning a motion for
summary judgment.
So, I think it is reasonable to consider specific
proposals that may be
discussed early in the process for some reason in
the context of the
broader proposals that have been made and which
underlie this effort. I
do not think it is too far of a stretch to think
that there is some plan
to establish positions, for example in connection
with the LoA, that
will then compel policy changes that might not
otherwise be supported if
addressed in the first instance from a full policy
position. Indeed,
the email from the PatCom chair to Larry Bassuk
yesterday, as I
understand it, says exactly this -- that the LoA
is not intended to be
amended to reflect current policy, but is to be
used to drive future
changes in the policy. I am not sure why it
is not a legitimate
comment, as I believe Larry made, to suggest that
this is not a proper
approach, but the Chair has indicated that he will
not entertain such
discussion. Putting aside whether this
procedural step itself, coupled
with the indication that decisions will not be
made based on a consensus
of interested parties, raises some issues,
including as might be
asserted under an Allied Tube analysis, it does
suggest that there may
be some strategy that is being pursued to progress
the IEEE policy to
include matters not identified on the March 27
agenda.
Included in such later to be addressed issues may
be your proposal for
collective negotiation of license terms.
Whether such collective
negotiations occur ex ante (as I assume you would
prefer) or ex post, it
would seem not to matter for the Golden Bridges'
decision apply.
Similarly, mandatory rate caps, which have also
been proposed and is on
the agenda for the March 27 meeting, may foster a
far greater likelihood
of claims such as is the subject of the Golden
Bridges case. Here, too,
I think you would agree from the perspective of
antitrust counselling
that while justifications may be offered, the
practical fact that even a
rule providing for voluntary rate caps could lead
to uncontrolled
discussions (outside the meeting room as alleged
in Golden Bridges) that
then are implemented in the meeting to set rates
collectively. Again,
the fact that justifications may exist and that a
rule of reason
analysis should be applied, or that the rule is
nominally voluntary, is
not going to stop a claim from being asserted or
the possibility of a
court rejecting the justifications and application
of the rule of
reason. That risk, which as illustrated by
Golden Bridges (as well as
the Conexant case in which TI prevailed but was
still required to
litigate) is not fanciful or remote.
When viewed in context the issue of whether to
include the definition of
"reasonable rates, terms and conditions"
as proposed, or any definition
of what
reasonable rates and license terms will be, in an LoA also could
give rise to what may be alleged as a garden
variety per se unlawful
antitrust violation. The proposed definition is
particularly problematic
because it would impose a standard upon patent
owners that is not
supported by law. Notwithstanding that some
commentators, as identified
by Scott Peterson, have discussed that from
economists perspective it is
possible to identify value attributable to a
patent itself and an
additional amount to the fact that the patented
technology is
standardized, this assessment is not universally
accepted, and it is the
very rare commentator that has suggested that
patent owners should be
stripped of the value of their IP based upon such
an analysis. Nor
would this theory apply in each case, as you have
acknowledged, for
example where there is only a single patented
alternative under
consideration for standardization. Such a
step, even in the standards
context, also would be fundamentally contrary to
patent law.
Accordingly, it is certainly conceivable that one
could allege that an
SDOs adoption of such a rule constitutes concerted
action (especially
where consensus is not the basis for the
decision). Moreover, because
the proposed definition only includes selective
factors, and not many
other factors that would be relevant to a full
determination of what a
willing licensor and willing licensee would agree
to at the time of the
negotiations, it could be argued too that it is
equivalent to a price
fixing agreement. Again, the purpose of this
point is not to say that
such a claim would necessarily succeed, but rather
to point out that it
may survive a motion to dismiss. This may
not be a Golden Bridges' type
allegation, but I don't think the IEEE should be
limiting itself to only
those type of antitrust theories. (This
comment also does not address
the fact that in my view, wearing an SDO hat, this
is just bad policy
because it would impose a rigid definition that is
not applicable to
many situations that arise in the standards
process.)
Likewise, although not related to the Golden
Bridges' decision, the
approach of the LoA is problematic because it
could have the exact
contrary effect than I had thought was intended.
Rather than providing
information early in the standards development
process, it could result
in causing patent owners to wait until the very
last minute to disclose
IP and to submit an LoA. This likelihood is
already more probable than
not because of the fact that any LoA will not be
binding and
irrevocable. The very real problem is that
it may be impossible to
identify what is an "essential patent"
until the standard is well along
the way to being final. Accordingly, unless
a patent owner wishes to
give a blanket license (which as proposed would apply
to all essential
patents whether disclosed or not, which itself
reflects a fundamental
change from the ANSI policy), it runs the risk of
having to make
licensing commitments without even knowing whether
its IP is essential.
If such IP is then subjected to a collective
negotiation of terms or
mandatory rate caps, prices for non-essential
competing patents would be
fixed as would rates for essential patents.
I think you do understand
the potential antitrust risk there.
Similarly, the proposed LoA's approach to
Organizational Knowledge could
exacerbate these problems, especially for
companies that themselves are
not members, but who's employees are members.
How would the concept of
Organizational Knowledge as proposed even apply in
that circumstance?
Further, how could an employee who has nothing to
do with licensing
issues or his employer's patent portfolio be in a
position to bind his
company, much less affiliates, successors and
assigns?
Further, the proposal to make the LoA binding by
having it signed by the
IEEE also involves antitrust issues. Such a
step clearly would allow
the argument that the concerted action element of
a Section 1 Sherman
Act claim is satisfied, and any anticompetitive
effects achieved through
implementation of the LoAs, especially under a
rule of reason analysis,
would require extensive analysis, and resulting
costs and times.
I hope these comments help you. Please
understand they are not being
offered for any purpose other than to express what
I believe may result
in less efficient, and thereby less
procompetitive, standards
development. These are my views regarding
the standards process, and
should not be ascribed to any particular company
that I may or may not
represent. I hope you take them in that way,
and that you do not think
that they are offered to counterbalance your
positions. I do think it
would be a very bad result, however, if rules are
adopted, no matter how
well intentioned, that will not accommodate all
stakeholders' interests
in the IEEE type of open standards body, and that
will give rise to even
the prospect of greater litigation risks, to say
nothing of liability
risks. I think this would be especially
unfortunate if such rules are
adopted because of a flawed process or a failure
to consider all of the
very complex variables that exists in standards
development, as well as
in connection with the current state of
technology, competition and
licensing.
Look forward to seeing 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 7:27 PM
To: Taffet, Richard S.;
PP-DIALOG@listserv.ieee.org
Subject: RE: [PP-DIALOG] Application of per se
rule to ex ante joint
conduct
Thanks Richard. I'm not aware that the issue
of royalty caps, which as
we both know is alive in ETSI, is on the IEEE-SA
agenda. I'm also not
aware that the rules changes that PatCom is being
asked to consider, as
you put it, "rules that will invariably (at
least allegedly) lead to
fixing of license terms by joint conduct."
PatCom is being asked to
consider rules that will give patricipants in
standard-setting and
implementers of IEEE standards more information
about what terms they
will have to accept to practice those standards.
I'm missing how that
leads to "fixing of license terms."
On your suggestion regarding agenda efficiency and
the views you ask me
to present, all I can say in response is that it
was you, not me, that
posted the Golden Bridge
opinion in what could be seen as an attempt to
raise in the minds of PatCom members the specter
of antitrust risk as a
reason not to favor the ex ante proposals.
Further to my prior postings
in response, perhaps you can make your reasoning
explicit. You are a
leading practitioner that has been engaged in
standard-setting and
antitrust issues since for a while, and your views
would, I'm sure, be
illuminating.
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 3:44 PM
To: Gil Ohana (gilohana);
PP-DIALOG@listserv.ieee.org
Subject: RE: [PP-DIALOG] Application of per se
rule to ex ante joint
conduct
I certainly agree wholeheartedly with your point
that it is important to
consider how enforcement agencies will consider
changes in SDO rules.
Some may be positive and some may be negative, as
I understand has been
the reaction of the EC officials to certain
positions in ETSI.
I am not too concerned with agenda efficiency,
however. I am more
concerned that whomever is making the decision
does so on a fully
informed basis and not to advance a specific agenda.
I think specifically when you get into issues such
as royalty caps, and
rules that will invariably (at least allegedly)
lead to fixing of
license terms by joint conduct, grave concerns
should exist.
Likewise, I would think that if agenda efficiency
is the primary
motivating factor here, please do share with us
your views how each of
the proposals that have been made will not
conclusively allow any claim
of concerted action or an anticompetitive effect.
If you can do that by
first of next week, we will have a basis to
continue the dialog.
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 6:17 PM
To: Taffet, Richard S.;
PP-DIALOG@listserv.ieee.org
Subject: RE: [PP-DIALOG] Application of per se
rule to ex ante joint
conduct
Thanks Richard. For better or worse, neither
of us is a member of the
Patent Committee. I'm hoping that the people
that actually get to do
the voting are monitoring this list, and they
would benefit from hearing
your views as to why the specific legal theory
asserted by the plaintiff
in the Golden
Bridge case you chose to
post to the list is relevant to
the votes they will be asked to cast on the 27th.
They also may benefit
from understanding more generally, particularly in
the wake of the
various statements regarding the issue of ex ante
disclosure rules and
antitrust risks that have been made by the
European Commission and the
leadership of both US federal antitrust agencies, what
role
consideration of antitrust risk should play in
their consideration of
the various proposals for the changes to the
IEEE-SA rules involving ex
ante disclosure of licensing comitments.
That is not an easy question, and it merits
careful consideration from
the members of PatCom (after all, if you're right
about the connection
you seem to posit between between ex ante rules
and increased antitrust
risk, then IEEE-SA would seem to have a
significant organizational
interest at stake in avoiding the "messy and
unpredictable" process of
antitrust
litigation). I'm hoping that you share my goal of addressing
those issues in advance of the meeting so that we
can proceed through
the agenda efficiently.
Best regards,
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 2:57 PM
To: Gil Ohana (gilohana); PP-DIALOG@listserv.ieee.org
Subject: RE: [PP-DIALOG] Application of per se
rule to ex ante joint
conduct
Gil
What's your rush? What conclusions will you
draw? I am not sure what
the basis will be to conclude anything one way or
the other, or what
signficance it will have in what the IEEE is
considering on the merits.
If there is a need for you to find out more
information on a particular
schedule, give me a call and we can schedule a
time to discuss each of
the proposals and each of their implications.
If it is important to
you, we can try to schedule such a call in advance
of the March 27
meeting Let me know.
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 5:28 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, why wait for the meeting? You have
the chance to enlighten all
of us now.
To frame the question again, I'm not asking you
generally for your view
of why ex ante disclosure rules increase the risk
that SDOs and
companies participating in standard-setting will
face antiturst
ligitation. I'm going back to the Golden Bridge
decision you chose to
bring to the attention to the list and asking you
to explain which of
the specific rules changes that IEEE-SA's Patent
Committee would
increase the risk that IEEE-SA or participants in
IEEE-SA's technical
working groups would face group refusal to deal
claims. It's a simple
enough question, and if your response is that
you'll need all the time
between now and March 27 to think of an answer,
then we'll draw the
appropriate conclusions. I'm optimistic
(there I go again) that we
won't have to wait that long.
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 2:14 PM
To: PP-DIALOG@listserv.ieee.org
Subject: Re: [PP-DIALOG] Application of per se
rule to ex ante joint
conduct
I am sure the PatCom chair will afford us plenty
of time to discuss how
the IEEE proposals could raise the same type of
claims as alleged in the
Golden Bridges case. I think you are also
truly the optimist in
thinking that rules, which have already engendered
significant debate
when merely being proposed, will lead to anything
but more litigation.
Words have a funny way of being interpreted in
interesting ways in the
context of lawsuits.
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 5:10 PM
To: Taffet, Richard S.;
PP-DIALOG@listserv.ieee.org
Subject: RE: [PP-DIALOG] Application of per se
rule to ex ante joint
conduct
Thanks Richard. Recognizing your point that
the 3GPP standards are
being revised, what Golden Bridge
has alleged is a group refusal to deal
by a number of large potential licensees,
effectuated through an
informal
agreement reached in what the opinion terms is an "offline
session." I'm still not seeing the
connection between any of the
proposed rules changes that IEEE-SA is considering
and the conduct
alleged in Golden Bridge.
Nothing about, for example, permitting
patentees disclosing essential patents to an
IEEE-SA working group to
state a "not to exceed" royalty or
attaching to their LoA a binding
licensing commitment would in any way increase the
exposure that IEEE-SA
or participants in IEEE-SA working groups face
under the antitrust laws
from the kinds of claim asserted by Golden Bridge.
So I go back to the point made in my earlier
e-mail: are you just trying
to remind us that participants in standard-setting
face antitrust risk?
Or are you trying to argue that there is something
specific in the
proposed IEEE-SA rules changes that the Patent
Committee is to consider
in a few weeks that increases the risk IEEE-SA and
participants in
IEEE-SA standards working groups face from group
refusal to deal claims?
It's easy enough to mention ex ante and antitrust
risk in the same
sentence and hope that people associate the two.
But, after the
endorsement of ex ante disclosure rules provided
both in Chairman
Majoras' speech and in the press release the
European Commission issued
in December following the change to ETSI's rules,
it would be helpful to
the debate if you could provide a more specific
causal linkage between
the rules that IEEE-SA is considering adopting and
increased antitrust
risk to IEEE-SA or its members.
One more thing: I agree with you that litigation
is "messy and
unpredictable." Of course, a major
benefit of the adoption of ex ante
rules is that they avoid the need for companies
seeking to implement a
standard to avoid the need to litigate patent
disputes with patentees
that seek to define what a "reasonable"
royalty is expansively. Those
cases, too, can be "messy and
unpredictable."
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 1:45 PM
To: Gil Ohana (gilohana);
PP-DIALOG@listserv.ieee.org
Subject: 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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