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Known Unknowns: Uncertainty and Its Implications for Antitrust Policy and Enforcement in the Standard-Setting Context Publications Antitrust Share this See Also Antitrust Share this June 18, 2012 Read the article This article, co-authored by Paul, Weiss partner Joe Simons and Hunton & Williams partner D. Bruce Hoffman, analyzes unilateral misconduct in standard-setting organizations, including in particular various forms of patent holdup. The authors identify uncertainties facing agencies and courts reviewing such conduct and describe certain analytical frameworks that agencies can use to determine whether enforcement action is appropriate in a particular case. The article examines three key "unknowns:" Whether a standard-setting process was abused or misused in some way; Whether such misconduct, if any, had a significant adverse effect on competition; and What remedy, if any, would cure such competitive harm. The authors argue that agencies and courts should protect the reasonable expectations of other participants in the standard-setting process, should adopt a practical approach (a "substantial contribution" test) to problems of causation raised by misconduct in the standard-setting arena, and should favor compulsory licensing as a presumptive remedy in standard-setting cases, reserving others (such as disgorgement) for unusual cases in which compulsory licensing fails adequately to deter or remedy anticompetitive misconduct.

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