Boston Bar Association

Standards play a critical role in our increasingly networked world, providing the technological glue that enables complex independently-designed products to work together well.   At the same time, standards are often a joint endeavor of competing firms, many of whom may own patents in the underlying technology.  Thus, litigation involving industry standards often raises thorny legal and economic questions of interest to both intellectual property and antitrust attorneys.  This session will feature a litigator and economist discussing key issues from several recent antitrust cases from the District of Massachusetts, the First Circuit and other federal courts around the country involving industry standards and intellectual property.

Topics will include:

• What exactly does it mean to agree to license on Fair Reasonable and Non-Discriminatory (FRAND) terms in the standards context?  How might this issue play out in later litigation or government investigations?
• When does the decision to exclude a firm's technology from the standard constitute a group boycott? How does the fact that the excluded technology was patented impact the analysis? What must a plaintiff prove to plead a conspiracy in this context? What are the applicable defenses?
• How might Standard Setting Organizations' policies be enforced under antitrust, contract and patent law? What are the trade-offs among these different types of claims?