The Role of Antitrust in Policing Unilateral Abuses of Standard-Setting Processes

M. Sean Royall, Partner with Gibson, Dunn & Crutcher LLP

9/05/2008
(Original Publish Date: 3/30/2004)

The potential for standard-setting activities to give way to anticompetitive agreements and jointly imposed market restraints is not a new concern. Over the past several decades, a number of courts have had occasion to apply Section 1 of the Sherman Act in the context of industry standard-setting, resulting in a fairly well-developed body of case law. Yet Section 1 of the Sherman Act is not the only provision of antitrust law with potential relevance to industry standard setting. As is evidenced by the Federal Trade Commission’s pending suits against Rambus Inc. and Union Oil Company of California (Unocal), standard-setting activities may also implicate Section 2 of the Sherman Act.