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1、RICHARD WOLFRAM, ESQ.410 Park Avenue, 15th Fl.New York, New York 10022Tel: (917) 225-3950Fax: (203) 698-TO: Department of Justice, Antitrust Division; Federal Trade Commission (ATR.LPS-PAEPublicCommentsusdoj.gov)FROM: Richard WolframDATE: April 5, 2013RE: Response to Request for Public Comments On D
2、OJ-FTC Hearing on Patent Assertion EntitiesAt the December 2012 Department of Justice-Federal Trade Commission Hearing on patent assertion entities (PAEs) and in response to the Request for Public Comments, participants and other commentators have amply and authoritatively described and assessed the
3、 impact of PAEs on innovation and competition, both positive and negative.I am submitting this comment, in my personal capacity and drawing from my own experience, for one limited purpose to address the viability of a Sherman Act Section 2 monopolization claim against a PAE which has repudiated the
4、commitment of its predecessor (direct or indirect), which participated in a standard setting organization (SSO), to license any of its intellectual property “essential” to a standard developed by that SSO on fair, reasonable and non-discriminatory (F/RAND) terms. This comment assumes for purposes of
5、 this discussion that the ever-thorny question of what constitutes a breach of a F/RAND commitment can be resolved and that a determination of breach can be made in a given case.In a recent speech Deputy Assistant Attorney General Renata Hesse discussed the question of Section 2 antitrust liability
6、for patent hold-up by owners of standard essential patents (SEPs), wherein they make knowingly false F/RAND commitments to the SSOs in which they participate and which then, in reliance on such commitments, develop standards incorporating their SEPs, resulting in industry lock-in. “IP, Antitrust and
7、 Looking Back on the Last Four Years,” Deputy Attorney General Renata Hesse (Feb. 8, 2013), available at http:/www.justice.gov/atr/public/speeches/292573.pdf. She further noted that the question has been raised whether Section 2 liability for such conduct, if any such liability obtains, should be li
8、mited as a matter of law and policy “exclusively to instances in which the patent holder intentionally deceived the SSO while it designed the standard.” For instance, in contrast to the facts in Broadcom v. Qualcomm Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297 (3d Cir. 2007)., in which Qualcomm was
9、 found to have intentionally deceived the SSO at the time it made its F/RAND commitment, one can imagine a scenario in which an SSO participant holding an SEP makes a F/RAND commitment in good faith and then subsequently changes course and violates its F/RAND commitment after the standard is set. It
10、 has been argued, Ms. Hesse notes, that in such circumstances “the competitive process may be equally disrupted if there were alternatives that the SSO would have included but were ultimately excluded because of the patent holders F/RAND commitment.” As Ms. Hesse explicitly encouraged members of the
11、 bar to address this question, I write in response to this request, but now specifically with respect to the scenario in which the entity repudiating the F/RAND commitment is not the original obligor but its (direct or indirect) assignee, a PAE, as such conduct also squarely falls within the scope o
12、f the FTC/DOJ workshop on PAEs. Some five years ago I co-authored with David Balto a public Request for Investigation submitted to the FTC by the American Antitrust Institute alleging patent hold-up by Rembrandt, Inc, a PAE (referred to therein more broadly as a “non-practicing entity”), with respec
13、t to technology critical for the transmission of digital television signals, which was central to the nationwide conversion to digital TV. Request for Investigation of Rembrandt, Inc. for Anticompetitive Conduct That Threatens Digital Television Conversion, Petition to the Federal Trade Commission b
14、y the American Antitrust Institute, Bert Foer (March 26, 2008), available at http:/www.antitrustinstitute.org/files/AAI%20FTC%20Petition%20Rembrandt%203.26.08_040120081130.pdf In that Request (the “petition”) we explained the basis for possible claims under Section 5 of the FTC Act and, notably for
15、present purposes, also Section 2 of the Sherman Act, for patent hold-up by Rembrandt with respect to a F/RAND commitment made by its (indirect) predecessor, AT&T, to an SSO responsible for developing standards for digital television.I incorporate the AAIs petition herein by reference, first, in orde
16、r to offer a concrete set of facts and allegations that may serve as a more meaningful basis for readers to examine the viability of a Section 2 claim against a PAE. I emphasize, however, that I am not seeking in any way to revive the claims therein. The underlying facts were the subject of long-running litigation, in substantial part addressing the
