STATEMENT OF COMMISSIONER MAUREEN K. OHLHAUSEN

In the Matter of Robert Bosch GmbH

FTC File No. 121-0081

I voted against accepting the proposed consent agreement in this matter because I 

strongly dissent from those portions of the consent that relate to alleged conduct by the 

respondent involving standard-essential patents, or SEPs.1

 Even if all of the SEP-related 

allegations in the complaint were proved – including the allegation that the patents at issue are 

standard-essential – I would not view such conduct as violating Section 5 of the FTC Act.2

 

Simply seeking injunctive relief on a patent subject to a fair, reasonable, and non-discriminatory 

(“FRAND”) license, without more,3

 even if seeking such relief could be construed as a breach of 

a licensing commitment, should not be deemed either an unfair method of competition or an 

unfair act or practice under Section 5. The enforcement policy on the seeking of injunctive relief 

on FRAND-encumbered SEPs that the Commission has announced today suffers from several 

critical defects. 

First, this enforcement policy raises significant issues of jurisdictional and institutional 

conflict. It is simply not in the public interest to effectively oust other institutions, including the 

federal courts and the International Trade Commission (“ITC”) from the important and complex 

area of SEPs through the use of our Section 5 authority. By imposing Section 5 liability on a 

firm that seeks injunctive relief on its SEPs, the Commission is doing exactly that. The FTC is 

not, nor should it be, the only institution acting in the SEPs space. Moreover, it is unclear how 

the seeking of injunctive relief, in either the courts or the ITC, on a patent – even a FRANDencumbered SEP – would not be considered protected petitioning of the government under the 

Noerr-Pennington doctrine.4

 In fact, a court recently dismissed Sherman Act and state unfair 

                                                            

1

 I concur with the consent agreement reached in this matter insofar as it requires the divestiture of certain 

assets to remedy the Clayton Act Section 7 violation that likely would have resulted from the proposed 

transaction. I do have strong reservations, however, about the relatively broad fencing-in relief included 

in the proposed Decision and Order that requires the respondent to cancel the exclusivity provisions in its 

contracts with various distributors and equipment servicers. See Decision and Order ¶ III. Fencing-in 

relief that modifies contracts entered into by participants across an industry raises concerns for me about 

whether such relief goes beyond that which is necessary to protect the viability of the divestiture buyer 

and thus effectuate the legitimately pursued remedy in this matter. 

2 See Complaint ¶¶ 11-20, 23. See also Decision and Order ¶ IV; Analysis of Agreement Containing 

Consent Order to Aid Public Comment § V.B. 

3 See, e.g., In re Rambus, Inc., Dkt. No. 9302 (FTC Aug. 2, 2006) (Commission opinion) (finding 

deception that undermined the standard-setting process), rev’d, Rambus Inc. v. FTC, 522 F.3d 456 (D.C. 

Cir. 2008); In re Union Oil Co. of Cal., 138 F.T.C. 1 (2003) (Commission opinion) (same); In re Dell 

Computer Corp., 121 F.T.C. 616 (1996) (consent order) (alleging same). 

4 See Eastern R.R. Presidents Conference v. Noerr Motor Freight, 365 U.S. 127 (1961); United Mine 

Workers of Am. v. Pennington, 381 U.S. 657 (1965); California Motor Transp. Co. v. Trucking Unlimited, 

404 U.S. 508 (1972) (applying Noerr-Pennington doctrine to petitioning of judicial branch). 
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competition claims grounded on the seeking of injunctive relief in the courts and the ITC on 

FRAND-encumbered SEPs, holding that such conduct was protected by Noerr.

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Second, this enforcement policy appears to lack regulatory humility. The policy implies 

that our judgment on the availability of injunctive relief on FRAND-encumbered SEPs is 

superior to that of these other institutions. I agree that the FTC is well positioned to offer its 

views and to advocate on the important issue of patent hold-up using its policy tools. For that 

reason, I supported the Commission’s June 2012 filing with the ITC.6 However, as the 

Commission testified to Congress shortly after filing its statement with the ITC, “Federal district 

courts have the tools to address this issue [hold-up], by balancing equitable factors or awarding 

money damages, and the FTC believes that the ITC likewise has the authority under its public 

interest obligations to address this concern and limit the potential for hold-up.”7 I see no reason 

why this unanimous statement no longer holds.8

Third, to the extent that the SEP allegations in the complaint aspire to the consent 

agreement reached in the Commission’s N-Data9 matter, I would submit that that consent is an 

ill-advised guidepost for this agency to use in its enforcement of Section 5 for several reasons. 

Most importantly, the N-Data consent fails to identify meaningful limiting principles that would 

govern the Commission’s use of its Section 5 authority.10 As former Chairman Majoras 

                                                            

5 See Apple, Inc. v. Motorola Mobility, Inc., No. 3:11-cv-00178-BBC, 2012 WL 3289835, at *12-14 

(W.D. Wis. Aug. 10, 2012) (dismissing Apple’s Sherman Act and state unfair competition claims and 

holding that Motorola’s filing of litigation in the federal courts and ITC on its FRAND-encumbered SEPs 

was immune under Noerr). 

6

 Third Party United States Federal Trade Commission’s Statement on the Public Interest, In re Certain 

Wireless Communications Devices, Portable Music and Data Processing Devices, Computers and 

Components Thereof, Inv. No. 337-TA-745 (Int’l Trade Comm’n June 6, 2012), available at

http://www.ftc.gov/os/2012/06/1206ftcwirelesscom.pdf. 

7 Oversight of the Impact on Competition of Exclusion Orders to Enforce Standard-Essential Patents: 

Hearing Before the S. Comm. on the Judiciary, 112th Cong. 1-2 (2012) (statement of the Federal Trade 

Commission), available at http://www.ftc.gov/os/testimony/120711standardpatents.pdf. 

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 The cases cited in the Commission’s statement for the proposition that there is an “increasing judicial 

recognition” on the tension between FRAND commitments and injunctive relief, to the extent that they 

reveal anything, show that the courts are not freely issuing injunctions against willing licensees of 

FRAND-encumbered SEPs. See Statement of the Commission, at 2 n.6. Thus, far from supporting the 

position that the FTC should block access to other institutions, these cases clearly demonstrate that the 

courts are well equipped to address issues involving injunctions on FRAND-encumbered SEPs. 

9 In re Negotiated Data Solutions LLC, FTC File No. 051-0094, Decision and Order (Jan. 23, 2008), 

available at http://www.ftc.gov/os/caselist/0510094/080923ndsdo.pdf. 

10 See, e.g., E.I. du Pont de Nemours & Co. v. FTC, 729 F.2d 128, 139 (2d Cir. 1984) (“Ethyl”); (“[T]he 

Commission owes a duty to define the conditions under which conduct . . . would be unfair so that 

business will have an inkling as to what they can lawfully do rather than be left in a state of complete 

unpredictability.”); FTC v. Abbott Labs., 853 F. Supp. 526, 535-36 (D.D.C. 1994) (“The Second Circuit 

stated emphatically that some workable standard must exist for what is or is not to be considered an unfair 

method of competition under § 5. Otherwise, companies subject to FTC prosecution would be the victims 

of ‘uncertain guesswork rather than workable rules of law.’”) (quoting Ethyl, 729 F.2d at 139); ABA

SECTION OF ANTITRUST LAW, ANTITRUST LAW DEVELOPMENTS 661 (7th ed. 2012) (“FTC decisions have 
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explained in her dissent, the N-Data consent was a material departure from the prior line of 

standard-setting organization (“SSO”) cases brought by the Commission, which were grounded 

in deceptive conduct in the standard-setting context that led to, or was likely to lead to, 

anticompetitive effects.11 Then-Commissioner Kovacic also dissented, objecting to, among other 

things, the majority’s assumption that a Section 5 action would have no spillover effects in terms 

of follow-on private litigation.12

The SEP allegations and consent in the instant matter suffer from many of the same 

deficiencies as the N-Data consent. I simply do not see any meaningful limiting principles in the 

enforcement policy laid out in these cases. The Commission statement emphasizes the context 

here (i.e. standard setting); however, it is not clear why the type of conduct that is targeted here 

(i.e. a breach of an allegedly implied contract term with no allegation of deception) would not be 

targeted by the Commission in any other context where the Commission believes consumer harm 

may result. If the Commission continues on the path begun in N-Data and extended here, we 

will be policing garden variety breach-of-contract and other business disputes between private 

parties. Mere breaches of FRAND commitments, including potentially the seeking of 

injunctions if proscribed by SSO rules,13 are better addressed by the relevant SSOs or by the 

affected parties via contract and/or patent claims resolved by the courts or through arbitration. 

It is important that government strive for transparency and predictability. Before 

invoking Section 5 to address business conduct not already covered by the antitrust laws (other 

than perhaps invitations to collude), the Commission should fully articulate its views about what 

constitutes an unfair method of competition, including the general parameters of unfair conduct 

and where Section 5 overlaps and does not overlap with the antitrust laws, and how the 

Commission will exercise its enforcement discretion under Section 5. Otherwise, the 

Commission runs a serious risk of failure in the courts14 and a possible hostile legislative 

                                                                                                                                                                                               

been overturned despite proof of anticompetitive effect where the courts have concluded that the agency’s 

legal standard did not draw a sound distinction between conduct that should be proscribed and conduct 

that should not.”). 

11 See In re Negotiated Data Solutions LLC, FTC File No. 051-0094, Dissenting Statement of Chairman 

Majoras, at 1-2 (Jan. 23, 2008), available at http://www.ftc.gov/os/caselist/0510094/080122majoras.pdf. 

12 See id., Dissenting Statement of Commissioner William E. Kovacic, at 1-2, available at

http://www.ftc.gov/os/caselist/0510094/080122kovacic.pdf. 

13 The instant matter also raises concerns about the Commission imposing requirements on the respondent 

that go beyond those it agreed to as part of the SSO at issue here, which does not appear to ban the 

seeking of injunctions on SEPs included in its standards. See SAE International, Technical Standards 

Board Governance Policy § 1.14 (Nov. 2008), available at

http://www.sae.org/standardsdev/tsb/tsbpolicy.pdf. Even more troublesome, it is an open question 

whether the patents at issue are even standard-essential. See, e.g., Complaint ¶ 16 (“After the adoption of 

SAE J-2788, SPX Corporation sued certain competitors, including Bosch, for infringing patents that may 

be essential to the practice of SAE J-2788.”). 

14 See Ethyl, 729 F.2d 128; Official Airline Guides, Inc. v. FTC, 630 F.2d 920 (2d Cir. 1980); Boise 

Cascade Corp. v. FTC, 637 F.2d 573 (9th Cir. 1980); Abbott Labs., 853 F. Supp. 526. 
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reaction,15 both of which have accompanied previous FTC attempts to use Section 5 more 

expansively. 

This consent does nothing either to legitimize the creative, yet questionable application of 

Section 5 to these types of cases or to provide guidance to standard-setting participants or the 

business community at large as to what does and does not constitute a Section 5 violation. 

Rather, it raises more questions about what limits the majority of the Commission would place 

on its expansive use of Section 5 authority. 

                                                            

15 See William E. Kovacic & Marc Winerman, Competition Policy and the Application of Section 5 of the 

Federal Trade Commission Act, 76 ANTITRUST L.J. 929, 943 (2010) (“In the 1950s and the 1970s, 

Commission efforts to use Section 5 litigation to reach beyond prevailing interpretations of Sections 1 and 

2 of the Sherman Act elicited strong political backlash from the Congress.”).