Intel v Fortress – FSA Amicus

Brussels, March 19, 2020 – Amicus curiae Fair Standards Alliance a.s.b.l. (“FSA”) respectfully submits this brief in support of Plaintiffs’ opposition to Defendants’ motion to dismiss. FSA is a non-profit dedicated to promoting a transparent and sustainable licensing framework for standard essential patents (“SEPs”) that fosters creativity, innovation, and job creation while preventing abusive licensing practices that harm industry and consumers. This case implicates important antitrust issues of significance to all patents, including SEPs. Although FSA takes no position on the ultimate merits of the case, it believes the Complaint states a claim under the antitrust laws and raises serious issues of particular importance to the innovation ecosystem that may be meaningfully informed by discovery. Accordingly, FSA respectfully urges the Court to deny Defendants’ motion to dismiss and permit the case to proceed.

FSA is composed of a diverse membership ranging from small and medium-sized enterprises to multinational corporations throughout a variety of industries, including automotive, telecom, broadcasting, semiconductor, and communications infrastructure. Annually, FSA members’ collective revenue is about $2 trillion, and in aggregate they spend more than $120 billion on research and development and innovation. FSA members are innovators that hold an extensive portfolio of patents, including SEPs, and develop a broad range of inventive products and services. FSA members employ more than three million people worldwide.

SEPs cover important standard-implementing components in many of FSA’s members’ products. Accordingly, FSA seeks to ensure that SEPs are licensed on fair, reasonable, and non-discriminatory (“FRAND”) terms, and that SEP royalties reflect the value of the underlying inventions, and not the exclusivity associated with inclusion in a technology standard or aggregation with other intellectual property. Because FRAND terms generally guarantee licenses to all comers, FSA believes that, although SEP infringement litigation is occasionally inevitable, it should be avoided except when the patent owner refuses to offer licenses that comply with its FRAND obligations. FSA discourages improper uses of SEP exclusivity, including demands for supracompetitive royalties and repetitive, seriatim infringement litigation to coerce compliance with those unfair demands, such as based on the costs of litigation or the threat of market exclusion. A collection of FSA’s position papers on these and other issues is publicly available on FSA’s website.


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