Today, the Federal Trade Commission announced that it has approved a modified final order that settles its investigation into Motorola Mobility’s alleged anti-competitive practices surrounding its standard-essential patent licensing and enforcement program (for more background, see our original post on the case). Here’s the Commission’s final decision and order, as well as a final version of the complaint:
You may recall that the proposed settlement and order was announced back in January. The FTC noted that it received 25 public comments on the proposed order (many of which we’ve covered before here and here), and that in light of these comments, the FTC made certain “technical modifications” to some provisions in the order. In a letter to the public commenters, the FTC explained the reasoning behind several provisions included in the final order, along with the modifications it made.
Some interesting notes and clarifications from the FTC’s letter include the following:
- The FTC decided to remove the count from the complaint that alleged that Google “engaged in unfair or deceptive acts or practices,” although it indicated that its decision to do so was limited to the facts of this particular case — not all SEP-related investigations.
- The FTC rejected the concern that barring the ability to seek injunctive relief during the appeal of the FRAND determination would delay the resolution of licensing disputes, noting that fairness dictates that implementers be able to appeal FRAND determinations without facing the threat of injunction relief (as long as they have committed to be bound by the final FRAND determination).
- Addressing fairly widespread concerns that its actions violate the Noerr-Pennington doctrine, the FTC found these without merit, arguing that it is simply requiring Google and Motorola to keep its FRAND promises — which the FTC concludes precludes seeking an injunction against a “willing licensee.” (Notably, the FTC cited the decisions by Judge Robart and Judge Posner as support.)
- The FTC kept in the order the “defensive use” exception, which allows Google/Motorola to seek injunctive relief for SEP infringement if it is facing a threat of injunction based on its own alleged SEP infringement. The FTC found that despite concerns by commenters that this was too broad and could allow for gamemanship, the provision was appropriate tailored and consistent with the goals of the order.
- Importantly, the FTC order does not require Google/Motorola to withdraw all pending legal claims for SEP-related injunctive relief (for instance, in the Apple-Motorola Federal Circuit appeal of Judge Posner’s decision). However, the FTC noted that the order does prohibit Motorola/Google from enforcing any injunctive relief that it may win in pending litigations unless it first complies with the provisions of the order.
As for the modifications made to the order, they were largely minor (and made with Google’s consent, which was required). The FTC made some clarifying and technical changes to the definitions, and also slightly altered the required arbitration procedure. The FTC also changed a provision that would have required Google/Motorola to respond to inquiries from potential licensee with an offer to license, instead now only requiring that Google/Motorola timely respond (but that the content of the response need not include an instant offer to license, but may be dictated by the circumstances).