DOJ Withdraws Assent to Key IP Policy

In a December 2018 speech before the Berkeley-Stanford Advanced Patent Law Institute, Assistant Attorney General Makan Delrahim, head of the DOJ’s Antitrust Division, announced that the DOJ has withdrawn its assent to the 2013 Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary FRAND Commitments (the Joint DOJ/USPTO Policy). He elaborated upon the DOJ’s enforcement approach to standard setting organizations (SSOs).

AAG Delrahim’s body of public remarks, including his December 2018 speech, should serve as a reminder that antitrust risks are inherent whenever market participants come together and act collectively in organizations. They should remain vigilant to ensure that the rules, procedures and patent policies of the SSOs are tailored to maximize pro-competitive goals, and to ensure that their participation, and the conduct of other participants, is in compliance with the rules of the SSO and the antitrust laws.

While participants in SSOs should always be mindful of the antitrust risks inherent in any joint enterprise with competitors, the DOJ’s shift in focus should prompt them to ensure that they give appropriate consideration to the adoption of best practices designed to reduce any antitrust risk. Standard setting must be for a legitimate pro-competitive purpose. Patent policies should be well documented, fair, and should involve early disclosure of standards-essential patents and independent determination of the value of these patents. Grant-back requirements should be fair and transparent.