FSA Amicus Brief – Continental v. AVANCI

Brussels, February 17, 2021 – The FSA’s members participate in standard-setting activities that run the gamut from wireless telephony to computer interfaces to autonomous vehicles. They hold hundreds of thousands of patents, including many thousands of SEPs.

This experience informs the FSA’s mission, most notably in ensuring the availability of all SEPs via a direct license on fair, reasonable, and nondiscriminatory (“FRAND”) terms. The FSA advocates for SEP royalties that reflect the value of the underlying inventions, not the exclusivity (and potential overcharge) attributable to inclusion in a technology standard or aggregation with other intellectual property rights. The FSA also discourages harmful abuses of SEP exclusivity, including the pursuit of injunctions except in limited circumstances, refusals to license, and demands for supracompetitive royalties.

This case implicates many of these issues and a host of important antitrust concerns. The FSA believes the district court erred when it ruled that:

• A patent holder’s deception of SSOs and resulting breaches of FRAND obligations cannot violate Section 2 of the Sherman Act, 15 U.S.C. § 2;
• SEP holders’ coordinated refusal to license entire segments of an industry did not state a claim under Section 1 of the Sherman Act, 15 U.S.C. § 1; and
• A component supplier like Continental lacks antitrust standing. If affirmed, the district court’s holdings would excuse and embolden anticompetitive conduct by SEP holders while adversely affecting innovation and economic activity in technology and product markets.