Antitrust

S H E A R M A N & S T E R L I N G L L P | 1 0 5 antitrust issue, although he recognized that both hold-up and hold-out can be problematic, and indicated the FTC would continue economically grounded and fact-based antitrust enforcement in the IP context. It remains to be seen whether Simons' comments represent his personal views only or more broadly signal a change in enforcement policy at the FTC. As part of its ongoing Hearings on Competition and Consumer Protection in the 21st Century, the FTC in October 2018 held discussions concerning innovation and IP policy. EUROPE Both the Court of Justice of the European Union in Huawei v. ZTE and the European Commission (EC) in its Motorola Mobility and Samsung Electronics decisions recently affirmed that, in Europe, hold-up is fundamentally a competition problem and competition law is an appropriate tool to enforce FRAND commitments. They also clarified the limits, under European Union competition law, of the SEP holder's right to seek an injunction against an implementer willing to enter into a license on FRAND terms. In November 2017, the EC issued non-binding guidelines concerning SEPs, which, among other things, discuss general principles for FRAND. The guidelines encourage industry participants to develop best practices concerning FRAND licensing, and indicate the EC will monitor progress and take appropriate action, as necessary. CONCLUSION AAG Delrahim's statements have garnered mixed reactions from both the SSOs and antitrust communities. While the New Madison approach appears to signal a significant shift at the DOJ, its application to antitrust enforcement of IP disputes remains to be seen. Similarly, it is unclear whether Chairman Simons' remarks will translate into changing enforcement actions by the FTC. It will be worth watching how both U.S. agencies (and the courts) navigate the intersection of antitrust and IP issues on a going-forward basis, and to what extent they stray from antitrust enforcers outside the United States. J O S E P H S I M O N S R E C O G N I Z E D T H A T B O T H H O L D - U P A N D H O L D - O U T C A N B E P R O B L E M A T I C

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