In order to receive approval Microsoft has made a number of commitments relating to its patent licensing practises. The most important of these is to make non-exclusive licenses available for devices running on competing smartphone platforms for a range of around 200 patents (i.e. protective provisions for both non-SEP and SEP enforcement). These commitments are part of Microsoft's current standard policy and, as such, do not represent a policy shift by Microsoft. Microsoft underlined this stance by saying that it has "no intention to change its existing patent licensing policies" due to the Nokia deal.
From the press release:
Nokia announced that the planned transaction whereby Nokia plans to sell substantially all of its Devices & Services business to Microsoft has today received regulatory approval from the Ministry of Commerce of the People's Republic of China.
As previously communicated, the closing of the transaction, which was announced on September 3, 2013, is subject to regulatory approvals and other customary closing conditions. Nokia and Microsoft have now received regulatory approvals from the People's Republic of China, the European Commission, the U.S. Department of Justice and numerous other jurisdictions. Nokia and Microsoft continue to expect the transaction to close during April 2014, as communicated in our press release from March 24, 2014.
Patent enforcement policy has also been a concern for regulators looking at the future activities of the parts of Nokia not being acquired by Microsoft, in part because the design related patents aside, the majority of patents are staying with Nokia, with Microsoft receiving "only" an attractive long term license. The concern for regulators is that Nokia, which will no longer be manufacturing devices, will have less to hold it back from acting aggressively in commercialising its patent portfolio. It can be argued that a certain element of "mutually assured destruction" has ensured that Nokia and other rival manufacturers have not fought an all out patent war.
Nokia is a key player because it holds one of the strongest patent portfolios in the industry. This position has been demonstrated both in various courts and landmark agreements with Apple, Samsung, and HTC. In its press release Nokia notes that no concerns around Nokia patent policy have been raised by regulators thus far:
The regulatory approval process has involved a thorough review of Nokia's patent licensing practices by several competition authorities around the world. During that process, no authority has challenged Nokia's compliance with its FRAND undertakings related to standard-essential patents (licensing on fair, reasonable and non-discriminatory terms) or requested that Nokia make changes to its licensing program or royalty terms.
However, it is clear that regulators will be watching Nokia carefully. The lack of concern to date reflects Nokia's previously relatively low key approach to generating revenue from its extensive patent portfolio. Looking ahead, it is likely that Nokia will seek to extract greater revenue from its patent portfolio. This is not unreasonable, but regulators will want to ensure that a balance is struck. In the first instance Nokia will be seeking to sign new license agreements (i.e. pursue companies who do not currently hold a license), but further ahead it could seek to negotiate new terms with existing licensees.