US DoJ clears Google's Motorola acquisition, with reservations

Stuart Corner
Thursday, 16 February 2012 09:47

IT Policy - Regulation

The Department of Justice's antitrust division has cleared Google's proposed acquisition of Motorola Mobility along with the acquisition by Apple, Microsoft and Research in Motion of a number of Nortel patents, and the acquisition by Apple of certain Novell patents , but has expressed concerns about the "ambiguity" of Google's policies around standard essential patents.

In a statement on all three investigations the DoJ said that none of the acquisitions was likely to lessen competition. "In particular, the division focused on standard essential patents (SEPs) that Motorola Mobility and Nortel had committed to license to industry participants through their participation in standard-setting organisations (SSOs)," the statement said.

It added: "The division's concerns about the potential anticompetitive use of SEPs was lessened by the clear commitments by Apple and Microsoft to license SEPs on fair, reasonable and non-discriminatory terms, as well as their commitments not to seek injunctions in disputes involving SEPs."

However, "Google's commitments were more ambiguous and do not provide the same direct confirmation of its SEP licensing policies," the DoJ said.

It warned "The division will not hesitate to take appropriate enforcement action to stop any anticompetitive use of SEP rights," and said: "In light of the importance of this industry to consumers and the complex issues raised by the intersection of the intellectual property rights and antitrust law at issue here, as well as uncertainty as to the exercise of the acquired rights, the division continues to monitor the use of SEPs in the wireless device industry, particularly in the smartphone and computer tablet markets."

The DoJ's decision follows a similar one from the European Commission a day earlier and it too had reservations about SEPs.

The Commission's vice president of competition enforcement, Joaquín Almunia, issued a statement on the decision saying: "Today's decision does not mean that the merger clearance blesses all actions by Motorola in the past or all future action by Google with regard to the use of these standard essential patents."

According to the EU Access to standard essential patents is crucial for all market players. "It is for this reason that standard setting organisations require the holders of standard essential patents to license these patents to any interested third parties on fair reasonable and non-discriminatory (FRAND) terms. The absence of such licences would hinder competitors or indeed the entire industry to the detriment of consumers and innovation."