What Happens Now on Standards-Essential Patents?

While the Federal Trade Commission this week mostly let Google off the hook on search competition, it did get the company to sign a binding consent order over how it uses standards-essential patents. Standard-essential patents — which cover basic technology shared in an industry — have become a key issue as smartphone competitors fight over intellectual property. Having been lumped into the long-running FTC antitrust investigation of Google over the past couple of months, patents weren’t originally an issue, but they emerged as an area where regulators could find fault and make a deal. So what does this mean for the larger standards-essential patent fights?

A few things — with a mix of winners and losers.

• The FTC is now on record saying that Google acted unfairly. That’s big.
• Google doesn’t have to drop its existing appeals of SEP cases, according to clarifying comments by FTC spokesman Peter Kaplan. However, Google can’t obtain or enforce any SEP exclusion orders or injunctions.
• Google’s agreement with the FTC is binding. But it is not necessarily as strong as what Apple and Microsoft already committed to voluntarily when the Department of Justice and other agencies in Europe were looking into the matter. They both said that they won’t seek injunctive relief based on SEPs, ever.