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  • 2 - Antitrust Convergence on Substantive Norms for SEP Licensing Negotiations

  • from Part I - Intellectual Property and Competition Policy in Global Wireless Markets
  • Edited by Jonathan M. Barnett, University of Southern California, Sean M. O'Connor, George Mason University Antonin Scalia Law School, Virginia
  • Book:
    5G and Beyond
    Published online:
    14 December 2023
    Print publication:
    21 December 2023, pp 33-50
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  • Summary

    This chapter underscores the importance of maintaining strong patent rights to protect incentives to innovate and ensure U.S. leadership in the 5G developments arena. The chapter covers doctrinal developments reflected in approaches to SEP licensing frameworks by the U.S. focusing on policy statements, agency action (including speeches, statements of interest, and amicus participation), and court rulings over the years. The chapter contextualizes these developments with global advances in the antitrust treatment of patent licensing, also touching on case law in Europe and developments in China. We highlight the potential for more changes to come in the U.S. approach to the intersection of intellectual property (IP) and antitrust law that may, in fact, bring the U.S. more in line with the European approach, specifically surrounding FRAND licensing commitments and negotiation disputes. Throughout, our review of lessons learned to date guides recommendations highlighting the legal and economic principles that should ultimately govern IP and IP-related competition policy in the 5G ecosystem.