Standard-Essential Patents and Antitrust: Of Fighting Ships and Frankenstein Monsters

Standard-essential patents (“SEPs”) have been at the heart of a debate about the reach of U.S. antitrust law. In recent years, the focus has been on whether breach of a good faith commitment to license on reasonable and non-discriminatory (“RAND”) terms can be the basis for a monopolization claim. The question is whether, in the absence of any fraud or deception at the time of the RAND commitment, an antitrust violation occurs when a holder of a RAND-encumbered patent either refuses to grant a license on RAND terms or seeks injunctive relief.