Vishal Mehta spoke to World IP Review for an
article about how President Joe Biden's changes to M&A
rules and the emergence of a stringent antitrust bill could herald
tough new antitrust measures with significant ramifications for
intellectual property.
According to Vishal, the U.S. Department of Justice held that
patent holdup – when a patent holder makes an intentionally
false promise to license technology on fair, reasonable and
non-discriminatory (FRAND) terms and then breaches that promise
– should not be viewed as an antitrust issue.
“The agency's ‘New Madison' approach
recast SEP [standard-essential patent] holdup as fundamentally a
contract, rather than antitrust, problem,” Vishal said.
“It emphasized the risk of hold-out by implementers,
reinforced the right to exclude inherent to patent rights, and
aligned this with the right to unilaterally refuse to deal under
the antitrust laws.”
