Antitrust Advisory: Fifth Circuit Reiterates That Participants in Standard Setting Must Take the Bad With the Good

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The U.S. Court of Appeals for the Fifth Circuit held last week that an antitrust plaintiff must do more than show that its competitors, all members of the same standard-setting organization along with the plaintiff, disliked it and wished to see its patent removed from the common standard in order to support its antitrust claims. Golden Bridge Technology, Inc. v. Motorola, No. 07-40954 (5th Cir. Oct. 23, 2008). Rather, to prove an antitrust conspiracy, a plaintiff must submit evidence tending to exclude the possibility that the defendants were acting independently?particularly in the context of a joint standard-setting organization, which is an efficient and pro-competitive means for competitors to make precisely the sort of decisions that were complained of in this case.

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