Unilateral Conduct and Standards

Unilateral Conduct and Standards


Daryl LimFollow


Link to Full Text

Download Full Text


This chapter examines how antitrust law and patent law have responded to unilateral conduct by patentees in the standards-setting context. Its principal focus is on deception as a form of unilateral abusive conduct that may be sanctioned under the antitrust laws. That deception is often referred to as “patent ambush.” It involves “deceiving buyers or keeping them in the dark about the terms on which a technology will be available subverts the competitive process.”

In the standards context, patentees may induce SSOs to adopt their technology through false assurances or by failing to disclose patents or patent applications when required to do so by SSO policies. In Research in Motion v. Motorola the court observed that “when an entity side-steps these safeguards in an effort to return the standard to its natural anti-competitive state, anticompetitive effects are inevitable.” These effects may take the form of higher royalties or the loss of cheaper alternative technologies through a corrupted selection process.

That is, during the critical competitive period that precedes adoption of a standard, “technologies compete in discrete areas, such as cost and performance characteristics. Misrepresentations concerning the cost of implementing a given technology may confer an unfair advantage and bias the competitive process in favor of that technology’s inclusion in the standard. For example, intentional concealment might deprive an SSO of an opportunity to design around patented technologies in developing standard. Deceit thus creates economic inefficiency by causing consumers to shoulder the burden of higher prices in the end products they buy, and by forcing implementers to exit the market.



Publication Date



Cambridge University Press


Patent, Antitrust


Antitrust and Trade Regulation | Intellectual Property Law | Law

Unilateral Conduct and Standards