DOJ to Standard Essential Patent Holders—“We have our eye on you”

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Last week, the Antitrust Division of the Department of Justice warned patent holders to make sure that enforcement of their patent rights do not hinder competition, either by charging excessive royalties or by foreclosing competition outright. This cautionary pronouncement was included in its closing statement explaining its decision not to challenge three high profile acquisitions of intellectual property portfolios critical to the wireless device industry. The division reiterated its intention to carefully monitor the manner in which patent holders enforce their patent rights, particularly in patents that are essential to industry standards. The division reviewed the competitive issues arising from the following notable transactions this year:

- Google Inc.’s acquisition of Motorola Mobility Holdings Inc.;

- the acquisitions by Apple Inc., Microsoft Corp., and Research in Motion Ltd. (RIM) of certain Nortel Networks Corporation patents; and

- the acquisition by Apple of certain Novell Inc. patents.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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