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US: Senators ask DOJ to develop antitrust guidance for patent licensing

 |  October 27, 2019

US Senators Thom Tillis (Republican – North Carolina) and Christopher A. Coons (Democrat – Deloware) sent a letter to the US Department of Justice (DOJ) pushing it to provide greater clarity as to its antitrust enforcement policy on standard essential patents (“SEPs”). 

This week’s letter from Senators Tillis and Coons addresses a specific issue associated with SEPs, namely the licensing of SEPs on fair, reasonable, and nondiscriminatory (FRAND) terms.

In their letter, the Senators wrote, “stakeholders have expressed concerns regarding a growing divide between the Department, the Federal Trade Commission, and the USPTO (United States Patent and Trademark Office) about the role of antitrust laws should play in addressing SEPs and FRAND commitments.” The letter encourages DOJ to work with the USPTO to develop a revised policy statement regarding SEP licensing.

SEPs are patents necessary for certain technological standards set by standard setting organizations. One example of the impact of technological standards on our daily lives involve cell phones, without consensus and collaboration between manufacturers, 3G, 4G, and now 5G, mobile networks would not be feasible. That said, SEPs can give rise to antitrust risks, reported JD Supra.  For example, firms holding patents integrated into technological standards can wield significant leverage over their potential competitors by refusing to give access to the patents necessary to compete. 

The US antitrust agencies have expressed differing views as to SEPs. The FTC and DOJ have adopted opposing positions at times, and there have even been internal inconsistencies within the agencies. Makan Delrahim has been particularly vocal on the topic, expressing caution against overaggressive antitrust enforcement against SEP holders and highlighting the need to encourage innovation by protecting intellectual property rights.

Full Content: JD Supra

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