WASHINGTON—The U.S. Justice Department is poised to clear Google Inc.'s $12.5 billion acquisition of Motorola Mobility Holdings Inc. as early as next week, according to people familiar with the matter, giving Google a powerful armory of technology patents to deploy in the smartphone wars.
However, antitrust enforcers in the U.S. and Europe remain concerned about Google's commitment to license Motorola patents to competitors on fair terms, those people said, and will closely monitor Google's use of the patents. The European Commission has set a Monday deadline to decide whether to approve the acquisition.
The Justice Department also is set to clear a second tech-patent deal that has raised antitrust concerns in the smartphone industry. It will allow a consortium of tech companies including Apple Inc., Microsoft Corp. and Research In Motion Ltd. to acquire a trove of patents from bankrupt Canadian telecom-equipment maker Nortel Networks Corp. for $4.5 billion, people familiar with the matter said. Investigators had been looking at whether those tech companies were planning to use the patents to unfairly hobble competing smartphones using Google's Android software.
A Justice Department spokeswoman declined to comment.
The decisions by the Justice Department and European Union come as such tech-industry companies as Apple, Samsung Electronics Co., HTC Corp. and Motorola have locked horns in courtrooms around the world over patent issues. While the lawsuits have spanned a range of patents, some have alleged infringement of patents for technologies such as Wi-Fi and 3G communications that are essential to making smartphones.
When those technologies were turned into industry standards, the companies involved agreed to issue licenses for their patents under fair, reasonable and nondiscriminatory terms, also known as FRAND. Questions about those commitments have become a hot topic as some technology companies have sought injunctions barring sales of products alleged to have infringed FRAND patents.
Motorola, for example, alleged in a German court that some of Apple's iPhones and iPads infringed its FRAND patent, and it got an injunction. As a result, Apple last week suspended some sales at its German online store until the injunction was lifted.
As the lawsuits have continued, some companies, including Apple, have expressed interest in creating frameworks for how FRAND patents should be licensed and litigated. Microsoft, for example, promised on Wednesday to license its FRAND patents in a fair way. It said it wouldn't seek court injunctions against any company that it believes has violated its standard essential patents. It also said it wouldn't transfer those patents to a third party, such as a patent-litigation firm, unless they adhere to Microsoft's promise.
Apple has made similar promises, while also becoming a proponent of the issue. In November, the iPhone maker sent a letter to a European standards organization recommending a framework for creating consistent FRAND royalty rates and ensuring that no company attempts to block sales of allegedly infringing products through an injunction.
"It is apparent that our industry suffers from a lack of consistent adherence to FRAND principles," wrote Bruce Watrous, Apple's head of intellectual property.
Cisco Systems Inc. has also spoken out on this issue. In a previously undisclosed letter written at the end of January, the company said it supported Apple's efforts, adding that "the telecommunications industry would benefit from a more consistent and transparent application of FRAND."
On Wednesday, Google sent letters to dozens of standards organizations promising that it would offer licenses for FRAND patents in Motorola's portfolio. Unlike Apple and Microsoft, however, it didn't rule out seeking injunctions against any potential violators.
"Google will not apply for injunctive relief against a willing licensee," the Internet company wrote in its letter. A willing licensee, according to the letter, would meet certain conditions that include providing sales estimates and paying royalties into an escrow account. Google didn't say how it would act toward unwilling licensees, though it added that it "reserves its right to seek any and all appropriate judicial remedies against counterparties" that refuse to license its FRAND patents.
Microsoft said in a blog post on Wednesday that it, along with other tech companies, had been discussing these concerns with antitrust enforcers in recent months. "In these discussions, we have offered our view that any patent holder that promises to make its standard essential patents available on reasonable and nondiscriminatory terms should do just that. That means that such patent holders should not seek to block shipments of competing products just because they implement an industry standard," it said.
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