Standards Ownership and Competition Policy

Herbert Hovenkamp, Professor of Law and History, University of Iowa College of Law

6/08/2008
(Original Publish Date: 4/10/2006)

Antitrust law is a blunt instrument for dealing with many claims of anticompetitive standard setting. Antitrust fact finders lack the sophistication to pass judgment on the substantive merits of a standard. In any event, antitrust is not a roving mandate to question bad standards. It requires an injury to competition, and whether the minimum conditions for competitive harm are present often can be determined without examining the substance of the standard itself. When government involvement in standard setting is substantial, antitrust challenges generally should be re-jected. The petitioning process in a democratic system protects even bad legislative judgments from collateral attack. In any event, antitrust’s pur-pose is to correct private markets. It is not a general corrective for politi-cal processes that have gone awry. The best case for antitrust liability oc-curs when the government somehow has been deceived into adopting a standard that it would not have adopted had it known the true facts. Even then, nonantitrust remedies such as equitable estoppel are probably a superior solution.