Industry Weighs In on DOJ’s Standards Essential Patent Policy Reversals
Beginning in November 2017, Makan Delrahim, head of the U.S. Department of Justice Antitrust Division, signaled that he would reverse many of the DOJ’s prior positions regarding technical standardization and, especially, patents covering technical standards (so-called Standards Essential Patents or SEPs) (the 2017 announcement is discussed in detail here). The latest step in this DOJ reversal of direction came in December 2018, when Mr. Delrahim announced that the DOJ would withdraw from a 2013 joint Policy Statement that the DOJ issued with the U.S. Patent and Trademark Office (PTO). The DOJ’s unexpected withdrawal from the Joint Policy Statement has prompted significant reactions within the industries affected by standardization, including statements of strong support for the DOJ’s new position by an inventors’ alliance and a coalition of large SEP holders, and statements urging the DOJ’s reconsideration by the American Antitrust Institute (AAI) [note: the author serves on the Advisory Board of the AAI] and a coalition of technology companies.
