• Top U.S. antitrust cop responds to letter challenging his position on patent issue • Tech industry concerned Delrahim’s views could stifle innovation, raise prices
The U.S. government’s top antitrust official signaled he will not change his views on technology-standard-setting patents, despite concerns that antitrust enforcement is needed for aspects of fair patent licensing.
Makan Delrahim, the Justice Department’s assistant attorney general for the Antitrust Division, defended—in a May 18letterobtained by Bloomberg Law—his recent comments that antitrust laws should not be used to police holders of patents essential to industry-wide technology standards.
Nearly 80 intellectual property professors, practitioners, and former government officials wrote May 17 to Delrahim, saying antitrust enforcement could help keep patent holders accountable for licensing protected technology. But Delrahim said his position accurately reflects the situation with patents that set technology standards.
Delrahim’s view, which could indicate a shift in future Justice guidance or enforcement actions, could favor large patent holders like Qualcomm Inc. that license their patented technology to other companies and competitors. Qualcomm is facing allegations by Apple Inc. and the Federal Trade Commission (FTC) that it abused its patent licensing position.
The “policies of the United States reflect our observations and understanding of, among other things, actual standards setting activity,” Delrahim wrote in the letter addressed to Rutgers University Law Professor Michael Carrier and former Federal Trade Commission Chairman Timothy Muris, two of those in the group that wrote about its concerns.
Tech industry voices have said Delrahim’s views could stifle innovation and raise consumer prices by making it more difficult for competitors to license technology under fair, reasonable and non-discriminatory terms (FRAND) from the patent holder.
In theletter, the group told Delrahim he was deviating from broadly held, bipartisan consensus about the issue, known as standard essential patent holdup.
Delrahim has said, in a series of speeches over the last six months, that he strongly believes that contract or common law remedies are adequate to police FRAND commitments—and that patent holdup is not an antitrust issue.
Still, in his May 18 letter, Delrahim said he welcomed the “lively discussion and research” from the group as the department considers its policies.
“We look forward to a robust debate on the issues we raised in the letter,” Carrier, the Rutgers professor, told Bloomberg Law in a statement.