Third Circuit Finds False FRAND Commitments Actionable Under the Antitrust Laws


Last week, the Third Circuit held that in a consensus-oriented private standard setting environment, a patent holder’s intentionally false promise to license essential proprietary technology on fair, reasonable and non-discriminatory terms, coupled with the standard setting organization’s reliance on that promise when including the technology in the standard, and the patent holder’s subsequent breach of that promise, is anticompetitive conduct actionable under the Sherman Act.[1]

The Court of Appeals opinion reversed an earlier decision of the District Court for the District of New Jersey dismissing Broadcom’s antitrust suit against Qualcomm. In its complaint, Broadcom alleged that Qualcomm monopolized certain markets for cellular telephone technology through intentionally deceiving ETSI, a private standard-setting organization (SSO), and its members by making false

promises to license its patented technology on fair, reasonable, and non-discriminatory (FRAND)terms, and then reneging on those promises by licensing its technology on non-FRAND terms after the technology was incorporated into the standard.

LOADING PDF: If there are any problems, click here to download the file.

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.

© Morrison & Foerster LLP | Attorney Advertising

Written by:


Morrison & Foerster LLP on:

JD Supra Readers' Choice 2016 Awards
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.