FTC files first enforcement action against firm seeking injunctions on FRAND-encumbered SEPs

The Federal Trade Commission’s (FTC) complaint and proposed consent order with Robert Bosch GmbH (Bosch), issued on 26 November 2012,1 is the first enforcement action by a federal antitrust agency against a patent holder for seeking an injunction based on infringement of patents that have been declared essential to an industry standard (SEPs) requiring such patents to be licensed on fair, reasonable, and non-discriminatory (FRAND) terms. According to the FTC’s statement in In re Robert Bosch GmbH, the breach of FRAND licensing commitments to willing licensees may violate Section 5 of the FTC Act “when such a breach tends to undermine the standard-setting process and risks harming American consumers.” The consent decree builds on the FTC’s prior statements and case law in the standard setting area, and it signals the agency’s future enforcement intentions at this important intersection of patent rights and antitrust law. 

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