The FTC has expressed concerns that Google’s Motorola Mobility subsidiary had violated Section 5 of the FTC Act by attempting to enjoin the users of patents that are essential to produce standardized technology. In the decree, Google agreed to license those patents on fair, reasonable and nondiscriminatory (FRAND) terms and refrain from seeking injunctive relief in either the federal courts or before International Trade Commission if the licensee is willing to accept a license. If the potential licensee states in writing that it will not on any terms accept a license for Google’s standard-essential patents or refuses to enter a license on terms imposed by a court, then Google would be free to seek injunctive relief.
Critics contended that the decree will do little to curb Google’s use of the threat of injunctive relief because potential licensees and Google have dramatically different views of what a reasonable royalty should be. Google is likely to characterize these companies as “unwilling,” freeing it to seek to enjoin their use of the standardized technology. The decree does generally require Google to accept a court’s decision, when the parties could not agree on a fair royalty. But an exception allows Google to seek an injunction if the potential licensee had sought to enjoin Google’s use of a standard-essential patented technology.