DOJ and FTC Feud Publicly on Antitrust

The Justice Dept took the unusual step of submitting a Statement of Interest in the Federal Trade Commission’s FTC’s case against Qualcomm last May, in order to take a contrary position. The DOJ’s antitrust division argued that an overly broad remedy could result in reduced innovation, with the potential to harm American consumers. “This Court should hold a hearing and order additional briefing to determine a proper remedy that protects competition while working minimal harm to public and private interests,” it said. The FTC countered that it disagreed with a number of the DOJ’s contentions, which “misconstrue applicable law and the record.” The court agreed with the FTC and issued injunctive relief against Qualcomm without conducting further remedy proceedings the DOJ advocated. According to an article by Timothy Syrett in IPWatchdog, the public feuding was a remarkable spectacle that underscored a wide divide between the two agencies on the role of antitrust law in addressing patents that are essential to industry standards and subject to commitments to license on fair, reasonable, and non-discriminatory terms. He says the DOJ’s turn away from its long-held position on the risks of patent hold-up is a cause for serious concern.