Kristen Osenga


Today’s technology standards are the result of an extraordinary amount of innovation, collaboration and competition. These concepts are interrelated, and each is enhanced or enabled by intellectual property. Where these three concepts come together in standards development, it is unsurprising that antitrust concerns are also present. Specifically, the interests of contributors, participants, and implementers must be fairly balanced to ensure that the appropriate types and levels of innovation, collaboration, and competition can occur—and that the public will benefit. It is important that antitrust enforcement involving standards development organizations and owners of standards essential patents recognize the careful balance of these three concepts. If antitrust enforcement elevates one goal—say competition—at the expense of collaboration and innovation, or if one set of actors in the standards development ecosystem—for example, implementers—is preferred over the other actors, there will likely be devastating effects on the standards development ecosystem.

The tension between innovation, collaboration, and competition in the standards development arena, as well as the divergent interests of contributors, participants, and implementers are not new. Between 2015 and 2019, however, the viewpoints of the FTC and DOJ diverged in how they handled the tension. This paper argues that we must look carefully at the underlying policies driving the agencies’ behavior: both the outmoded viewpoints that the FTC is pressing as well as the innovation-positive perspective that has shaped the DOJ’s actions in recent years. By amplifying the modern perspective and focusing on creating the right incentives for the right reasons, future imbalances that harm innovation, collaboration, and competition in the standards world can be avoided.