US Government Antitrust Intervention in Standard-Setting Activities and the Competitive Process

The private sector historically has driven the setting of technical standards in the United States, with the federal government only intervening in response to perceived violations of specific statutes, such as antitrust laws. This concern is reflected in case law and in advice proffered by US antitrust enforcers. Recently, however, US enforcers have turned their attention primarily to the alleged misuse of monopoly power over patents that cover technologies embodied in standards. This new focus threatens to undermine innovation and departs from sound antitrust enforcement policy. American antitrust enforcers should redirect their priorities away from alleged single-firm, patent-related abuses associated with standard setting and toward the traditional emphasis on reductions in rivalrous competition. They should also reject their recently adopted skeptical attitude toward patents and return to the former consensus, understanding that the exercise of patent rights generally promotes innovation and strengthens the competitive process