While many international businesses are used to navigating through the tricky shoals of United States antitrust enforcement and intellectual property (“IP”) law, they are now finding they need to navigate through South Korean regulation as well.

As South Korean firms have become increasingly prominent players in the global technology marketplace, the Korean government has become an increasingly prominent player in the regulation of global technology firms.

Since the mid-2000s, the Korean Fair Trade Commission (KFTC) has investigated, and often sanctioned, global tech firms such as Microsoft, Intel and Qualcomm.  It recently turned its sights to Google.

In 2010, the KFTC significantly revised its guidelines for enforcing Korea’s competition laws with respect to IP licensing.  Those guidelines apply equally to non-Korean firms whose conduct affects Korean markets. 

The US also employs antitrust guidelines for IP licensing, issued in 1995.  How do the new Korean guidelines compare to their US counterparts?

Constantine Cannon recently published an article addressing that question and identifying some similarities and differences.  Click here to read the analysis.

Right now, the smartphone patent wars are raging across the globe.

For example, Apple recently prevailed in a skirmish before the International Trade Commission that could theoretically stop the importation into the United States of all smartphones based on Google’s Android mobile operating system.  In Germany, Motorola Mobility, which Google is in the process of acquiring, won a victory against Apple for patent infringement that could lead to the iPhone and iPad being pulled from store shelves in that country.

Could patent pools, a 100-year-old legal device, provide a possible solution? Constantine Cannon recently published an article about the smartphone patent pools in Law360 and whether they would be a good way to foster innovation and protect intellectual property.  Click here to read the article.

Viacom and Cablevision have settled their dispute over streaming media content.

Viacom, which offers MTV, VH1, CMT, Nickelodeon, BET, Comedy Central, and Spike TV, accused Cablevision of using its new iPad app to illegally stream such popular media content.  In a jointly issued statement, the companies announced they “were able to resolve the iPad matter and an unrelated business matter to their mutual satisfaction.”

The lawsuit, filed in June 2011 in the U.S. District Court for the Southern District of New York, alleged that Cablevision breached licensing and distribution agreements, infringed Viacom’s intellectual property rights, and engaged in unfair competition.    

According to Viacom’s complaint, on April 2, 2011, Cablevision launched an iPad app that allowed Cablevision to “stream linear feeds of Viacom’s copyrighted entertainment programming through a cable modem to iPad tablets in violation of Viacom’s … rights.”  Viacom sought damages as well as injunctive relief to remedy the allegedly significant and irreparable harm suffered as a result of the unauthorized streaming. 

Although the details of the settlement were not immediately available, Viacom content will continue to be offered on Cablevision’s Optimum Apps for the iPad and similar devices. 

A similar lawsuit brought by Viacom against Time Warner Cable remains pending in the U.S. District Court for the Southern District of New York. 

TV network Viacom is suing cable TV operator Cablevision to stop Cablevision from delivering Viacom channels to subscribers’ iPad tablets.

Viacom claims that Cablevision’s iPad app, which works only in a subscriber’s home, violates contractual, copyright, and trademark rights, because the companies’ agreement allows Cablevision to distribute Viacom’s programming via only “cable TV.”  Cablevision has countered that the app is nothing more than “cable TV,” delivered to homes over Cablevision’s equipment and then sent to iPads as a new type of TV set.

Potentially, such litigation may call into question the regulatory, as well as contractual, status of content delivered by a multichannel video programming distributor (“MVPD”) when the transmission is neither within its conventional service footprint nor sent over the “open” Internet.

Viacom is engaged in a similar lawsuit, filed in April, against Time Warner Cable, which also proposed to send cable programming to tablet computers.  That suit may be nearing settlement, as Viacom and Time Warner asked the judge for a “standstill” order while they negotiate, which the court granted on June 22.

Policymakers have expressed concern about a perceived lack of competition among cable operators and other MVPDs such as satellite and fiber-optic providers.

In the past four years, customers have filed antitrust suits against cable operators challenging the parameters of the services they offer.  One suit sought to compel a cable operator to offer channels “a la carte” instead of in bundles.  Another challenged the practice of making interactive cable services available only to those who rent set-top boxes from the cable operator, leaving out those who buy a set-top box from another source.  None of these suits have been successful to date.

In its 2010 “National Broadband Plan,” the Federal Communications Commission stated that encouraging competition in the devices that subscribers can use to view interactive pay television would also promote competition among the MVPDs themselves.  The suits by Viacom bear watching because they could help determine who will decide which devices can receive pay TV service.

Antitrust concerns are causing the U.S. Department of Justice to eye an unprecedented auction of a mother lode of digital-communication technology warily.

Bankrupt telecom equipment maker Nortel Networks plans to auction off a treasure trove of more than 6,000 high-tech patents next week.  The patents cover vital parts of the new 4G LTE wireless protocol, wireless video, Wi-Fi, and many other wired and wireless communications technologies.

The Justice Department has expressed concern that the new owner of these patents could use them to create barriers to entry in digital communications.

The first company to announce a bid was Google, which began the public positioning for the auction with an $800 million “stalking horse” bid that others are expected to top.  The winning bid may easily exceed $1 billion.

While the Justice Department has approved Google’s bid, it is also reported to be investigating some others.  Apple, Intel, RIM, and Ericsson are expected to bid before the auction concludes next week.

According to the Justice Department’s guidelines on antitrust issues with intellectual property, a patent owner can generally license or refuse to license its patents to anyone, if it acts unilaterally.  Refusing to license a patent is considered an exercise of the rights inherent in a patent, to exclude others from using or selling an invention.  This rewards innovation and creates an incentive to disclose new inventions instead of keeping them secret.

On the other hand, licensing patents with conditions can harm competition outside the rights granted by the patent itself, and can violate the Sherman Act, according to the Justice Department’s guidelines.  While not per se illegal, patent licenses that require the licensee to license its own, unrelated patents to the original licensor, or to transfer any follow-on patents to the licensor, may diminish other companies’ potential to profit from their own inventions, which could suppress innovation in general.  Licenses that dictate the pricing of goods that use the patent are more likely to be found illegal.

One worry that some technology companies have expressed about the Nortel auction is that the winner could change the terms of their licenses to the patents going forward.  Where a patented technology is vital to a company’s business, demanding new terms when renewing a longstanding license in a way that would significantly raise their costs of doing business could possibly violate Section 2 of the Sherman Act, based on the Supreme Court’s decision in Aspen Skiing Co. v. Aspen Highlands Skiing Corp.

However, the Supreme Court has since said that Aspen Skiing represents the “high-water mark” of liability for refusing to deal with a competitor.  It may well be that no liability would arise for a licensing change, even with a long-term relationship between owner and licensee.

Given that the Justice Department has already cleared a major bid in the Nortel auction, the auction is likely to proceed without any formal antitrust challenges.  But the Justice Department’s positions on patent licensing – not to mention the courts’ – have certainly had an impact on the content of the bids and the conduct of the auction itself.