Advisory Letter 02-05 of October 7, 2002 concerning proposal of the American Welding Society ("the Society") to adopt a standard that includes specifications for assuring the interoperability of the various devices that make up a robotic welding cell
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excerpted from DOJ source)
The Society has phrased its business review request to the Division in the following manner:
"Assuming that the Subcommittee adheres to the procedures mandated by the American National Standards Institute, and assuming the Committee has a reasonable and good faith basis to believe, from a technical standpoint, that ArcLink is preferable as the basis for the specification, we request a statement of the Antitrust Division's current enforcement intentions should the Society proceed with the development of the specification described herein, based on ArcLink rather than DeviceNet, even if adoption of the specification would give Lincoln a competitive advantage and even if the technology within the specification is not currently widely used in the industry."
The Department is not in the business of picking winners and losers. We leave that to the marketplace. Our review is not based on whether we think one standard is better or worse than another. We do not bless a standard. Instead in this instance we look to see whether the process of standard-setting has been abused to seek an unfair competitive advantage and whether the proposed standard is the product of any anticompetitive conduct on the part of the organization or its members. Based on the information that you have provided to us, the Department has no present inclination to challenge the Society's adoption of the standard endorsed by its Committee. There is always a possibility that adoption of any standard, by private or public entities, could have some adverse effect on some competitors. To the extent that a product standard gains adherence by producers or consumers those products that fail to comply with the standard may suffer in the market place. However, the courts and antitrust enforcement authorities have recognized that standards can promote consumer welfare by reducing costs and facilitating competitive entry. As a result, the antitrust legality of private standards is determined under a rule of reason analysis in which the potentially anticompetitive effects of a standard are balanced against its potentially beneficial effects. Antitrust enforcement concerns arise only when the former outweigh the latter.
The Department's present disinclination to challenge the Society's proposed standard is based on several factors. We are not aware of any evidence that would lead us to conclude that the proposed standard is the product of any anticompetitive conduct on the part of the Society or its members. The Society is made up of producers and consumers of robotic welding systems, and there is little reason to believe that the latter would knowingly deprive themselves of reasonable competitive options. Moreover, this would not appear to be a situation where the Society, without knowledge, has allowed its procedures to be abused by a member seeking an unfair competitive advantage. You indicate that the Society's standard-setting procedures are open and transparent and that its Committee has carefully considered the technological and competitive implications of adopting a standard based on the contending technologies. Moreover, the owner of the intellectual property rights to be incorporated by the proposed standard has agreed to waive such rights in connection with adherence to that standard. In these circumstances, the Department will not presume that the Society and its varied membership have incorrectly determined that the proposed standard would best serve consumer interests.
Formal DOJ Business Advisory Letter