Proposed Consent Agreement In the Matter of Motorola Mobility LLC, a limited liability company, and Google Inc., a corporation; FTC File No. 121 0120 #563708-00025

Submission Number:
563708-00025
Commenter:
Jonathan  Darcy
Organization:
Research In Motion Corp
State:
Texas
Initiative Name:
Proposed Consent Agreement In the Matter of Motorola Mobility LLC, a limited liability company, and Google Inc., a corporation; FTC File No. 121 0120

February 22, 2013 Federal Trade Commission Office of the Secretary Room H-113 (Annex D) 600 Pennsylvania Avenue, NW Washington, D.C. 20580 To Whom It May Concern: Research In Motion Corporation (“RIM”) is pleased to submit comments on the Proposed Consent Agreement In the Matter of Motorola Mobility LLC, a limited liability company, and Google Inc., a corporation, FTC File No. 121 0120 (January 11, 2013) (“Proposed Consent Agreement”). RIM takes no position on the specific details of the Proposed Consent Agreement, under which Google has agreed not to seek injunctions against a willing licensee (either in federal court or at the U.S. International Trade Commission (“ITC”)) to block the use of any standard-essential patents (“SEPs”) that the company has previously committed to license on FRAND terms. RIM wishes, however, briefly to set forth its perspective regarding the availability of injunctions for FRAND-committed patents. Although injunctions generally may not be appropriate, a one-size-fits-all rule barring entities from ever seeking injunctions on their FRAND-encumbered SEPs would be economically undesirable. We believe that, in evaluating the facts, an antitrust enforcer should ask whether the SEP holder is seeking opportunistically to evade its FRAND commitment, or, rather, is defensively using its patent to preclude opportunistic hold-up by the other negotiating party. In other words, if (as we believe) key FRAND objectives are to avoid hold-up and to promote standards-based competition, there are circumstances in which a defensive injunctive threat by an SEP holder is procompetitive (and thus in compliance with a FRAND undertaking) – and the denial of the ability to make such a threat is anticompetitive (and thus at odds with the FRAND undertaking). We also are concerned that an inflexible “no injunctions” rule would over time reduce the value of SEPs relative to non-SEPs, and cause firms to invest fewer resources in standard setting. The end result would be inferior standards and reduced consumer welfare. RIM’s views on the interplay between SEPs and injunctions are set forth in greater detail in two 2012 RIM third party filings in matters before the ITC. RIM is pleased to attach those filings to this letter and respectfully requests that the Federal Trade Commission place them on the public record. Sincerely, Jonathan Darcy Senior Director Research In Motion Corporation Attachments