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The U.S. Justice Department today cleared the way for what amount to two major patent-related transactions: Google’s acquisition Motorola for $12.5 billion, and also Nortel’s $4.5 billion sale of a large patent trove to a consortium that includes Microsoft, Apple, and Research in Motion.

At the same time, the DOJ issued a warning on the topic of what are known as “standard essential” patents, or “SEPs” — patents involving technologies necessary to implement industry standards. The DOJ makes it clear that it’s more convinced by recent commitments from Microsoft and Apple than from Google on that front. From the news release …

During the course of the division’s investigation, several of the principal competitors, including Google, Apple and Microsoft, made commitments concerning their SEP licensing policies.  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.  Google’s commitments were more ambiguous and do not provide the same direct confirmation of its SEP licensing policies.

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 division will not hesitate to take appropriate enforcement action to stop any anticompetitive use of SEP rights.

Earlier today the European Commission also approved Google’s Motorola acquisition. The deal includes about 17,000 issued patents and 6,800 patent applications currently held by Motorola.

Microsoft general counsel Brad Smith said in a statement. “We are encouraged that the U.S. Department of Justice and the European Commission both have raised concerns about the misuse of standard-essential patents and Google’s failure to address this issue in a satisfactory way.  Google’s letter last week only intensified these concerns.  This underscores the importance of further regulatory scrutiny.”


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