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DOJ Chief Warns of Threats to Competition in Standard Setting and Patent Transfers

Posted in DOJ Developments, IP Antitrust

by Daniel Powers

The Acting Assistant Attorney General Joseph Wayland delivered a speech on Friday regarding how antitrust enforcement agencies can “balance patent rights, competition and innovation in the information age.”  Wayland covered familiar ground on topics ranging from the dangers of patent hold-up to the importance of patent holders’ commitments to license essential patents on F/RAND terms.  He stressed that the enforcement agencies continue to closely monitor the competitive impact of patent portfolio acquisitions, particularly in the wireless industry.  He also reiterated the agencies’ views about the appropriate standards for injunctive relief and the impact on competition of ITC exclusion orders to enforce standards essential patents.  Wayland’s prepared remarks also offered some specific suggestions about possible additions to the intellectual property policies of standard setting organizations that would limit opportunities to exploit the ambiguities of a F/RAND licensing commitment.  Suggestions included, for example, requiring patent holders’ make clear their F/RAND commitments bind both the current patent holder and subsequent purchasers of the patents.   He also warned that even if patent holders are not enforcing standard-essential patents, efforts to force licensees to accept certain kinds of anti-competitive contract terms might nevertheless trigger antitrust scrutiny.  Wayland said he has made it a priority to examine use or misuse of patents that goes beyond standard-essential patents.

Wayland’s prepared remarks are available on the Antitrust Division’s website at: http://www.justice.gov/atr/public/speeches/287215.pdf.

News coverage highlighting Wayland’s additional comments is available at: http://www.law360.com/competition/articles/380674?nl_pk=13f0a320-0811-47df-83bc-07f151d901ad&utm_source=newsletter&utm_medium=email&utm_campaign=competition.