Efficiency in Analysis of Antitrust, Standard Setting, and Intellectual Property

Gerald Masoudi, Deputy Assistant Attorney General , U.S. Department of Justice

9/04/2008
(Original Publish Date: 1/18/2007)

The application of antitrust law to certain standard-setting practices, including the use of ex ante licensing regimes by SDOs and certain actions by SDO members, is unsettled, and I do not have a complete set of answers today. This fact does not reflect any flaw in antitrust laws or policies, or any lack of analysis by the agencies. Rather, it reflects that fact that SDO practices are evolving and it is not yet clear what the specific practices and their effects are likely to be. Sound antitrust analysis is fact-specific and, at least outside the realm of per se violations, is effects-based, so I want to make clear that the U.S. antitrust agencies are reserving judgment on the many SDO practices that have not come before them. In particular, one should never assume that when the agencies endorse a particular approach, they necessarily frown on others. Businesses should feel confident that if they have ideas for creative, efficient, and procompetitive ways to structure SDOs, antitrust law will not stand in the way.