PDF《In the Matter of Robert Bosch GmbH》

3 fact that both the federal courts and the ITC have the authority to deny injunctive relief where the SEP holder has broken its FRAND commitment does not mean that this conduct is not itself a violation of Section

5 or within our reach. We also take issue with Commissioner Ohlhausen's suggestion that the Commission's action "appears to lack regulatory humility." The Commission is first and foremost a law enforcement agency, and this consent decree, like all of our unfair methods of competition enforcement actions, is a fact-specific response to a very real problem that threatens competition and consumer welfare. Indeed, we view this action as well within our Section

5 authority. The plain language of Section 5, the relevant legislative history, and a long line of Supreme Court cases all affirm that Section

5 extends beyond the Sherman Act.8 Moreover, this is not a circumstance where, as Commissioner Ohlhausen contends, there are no discernible limiting principles. SPX's failure to abide by its commitment took place in the standard-setting context. In that setting, long an arena of concern to the Commission, a breach of contract risks substantial consumer injury. The standard setting context, together with the acknowledgment that a FRAND commitment also depends on the presence of a willing licensee, appropriately limit the Commission's enforcement policy and provide guidance to standard-setting participants. For these reasons, we find Commissioner Ohlhausen's analogy of SPX's conduct to a "garden variety breach-of-contract" to be unpersuasive. While not every breach of a FRAND licensing obligation will give rise to Section

5 concerns, when such a breach tends to undermine the standard-setting process and risks harming American consumers, the public interest demands action rather than inaction from the Commission.

8 See, e.g., F.T.C. v. R.F. Keppel & Bros., Inc.,

291 U.S. 304, 310-313 (1934);

F.T.C. v. Cement Inst.,

333 U.S. 683,

693 & n.6 (1948);

F.T.C. v. Sperry & Hutchinson Co.,

405 U.S. 233, 241-244 (1972).