Update October 2009: The Federal Circuit has granted Philips request for en banc review of its earlier decision overturning the ITC decision that Sony and Philips had not unlawfully conspired to restrain trade.
The Federal Circuit has reversed an ITC decision rejecting a claim that Sony and Philips conspired to restrain competition in the development of recordable CD technology by agreeing to refuse to license a particular Sony patent. The ITC had found that the patent in question could not be used to make a recordable CD compliant with the Sony/Philips Orange Book standard. The Federal Circuit pointed out that competition in technology development need not be limited to a single standard. If a competitor could develop an alternative technology outside the standard, the antitrust laws would protect that competition. The court remanded for a determination as to whether an alternative technology could have been commercially viable. The court upheld the lower court’s rejection of a claim that a particular patent had been unlawfully bundled with others in the pool to provide Orange book technology.