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This paper discusses antitrust economics issues underlying the EU and US treatment of the balance between the rights of the developers of standard essential patent technologies technology—the patentees—and the rights of the implementers of the patents that drive the standard-setting organization. Currently, the rights of patentees and implementers are seen very differently by the US enforcement agencies and by the EU Competition Directorate. Absent an unlikely convergence, enforcement efforts are likely to be in conflict. Moreover, the resolution of this conflict could lead to a race with an uncertain outcome—it could be a race to the bottom or a race to the top. Following a brief overview of the antitrust economics issues surrounding the treatment of standard essential patents (SEPs), the paper discusses the differing perspectives of the EU and the US It concludes with commentary as to where the current tension between the EU and the US is likely to lead.




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