GeekPAC

In light of the recent tampering with ISO voting that we’ve seen reported in Sweden, Andy Updegrove has scooped this nice news nugget from Broadcom vs. Qualcomm litigation:

The underlying facts at issue involved Qualcomm’s participation in the creation of the Universal Mobile Telecommunications System (UTMS) standard, which was under development in the European Telecommunications Standards Institute, more commonly known as ETSI. Qualcomm volunteered technology owned by it for inclusion in the standard, and in return agreed that it would freely license any patent claims that it owned that would be infringed by implementing the standard. Specifically, Qualcomm made the traditional pledge to license its patent claims on “fair, reasonable and non-discriminatory” (or FRAND) terms.

After the standard was adopted and began to be implemented, Broadcom alleged that Qualcomm, which had a 90% market share of the type of chipsets that would implement the standard, sought to maintain its monopoly position by requiring other chipset vendors to pay unreasonably high royalties on Qualcomm’s patents, thus putting them in an inferior competitive position. Such planting of a patent, followed by a demand for high fees after the marketplace had become “locked in,” is referred to as “patent hold-up.” That type of conduct was most famously practiced by Rambus, Incorporated in the early 1990s in JEDEC, at the time that JEDEC was engaged in developing SDRAM standards. The US Federal Trade commission ultimately convicted Rambus, and the court in the Qualcomm opinion relied heavily on the FTC’s reasoning in its final judgment.

…

The three circuit court judges [U.S. Circuit Court of Appeals for the 3rd Circuit] agreed with Broadcom , and in so doing, created new case law, holding that deceptive conduct in standard setting can constitute a violation of the antitrust laws that relate to monopoly creation. Moreover, the court did not shrink from the question of determining what do, and do not, constitute “reasonable” terms in a FRAND [fair, reasonable and non-discriminatory] commitment, which has been one of the most troublesome aspects of standard setting.

How much relevance this has to the OOXML situation is debatable, as tampering with standards voting is an entirely different animal from planting a patent trap within an industry standard. I think the important takeaway here is that courts will look into standards setting misconduct and deception and have linked it to antitrust violations.

Potentially, there is a direct correlation that others have postulated and that Andy notes here:

I also see it in the fact that many of the comments that have been filed in connection with the OOXML vote have reportedly focused on concerns over whether extrinsic, but referenced, technology in the OOXML specification may lie outside the patent pledge made by Microsoft.