Author: Joseph Kattan
Published: June 1, 2013
This article discusses the problem of hold-up that is not the consequence of deception of a standard setting organization by a SEP holder, and whether this type of hold-up is reachable by Section 2 of the Sherman Act. The article shows that the reach of Section 2 is not dependent on a requirement that the SEP holder commit fraud or deception at the time of a standard’s development. Instead, in the absence of fraud or deception, Section 2 would still apply where the SEP holder’s breach of its FRAND commitment enabled it to exploit market power that it had agreed to forego by making the FRAND commitment.