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ARTICLE · 09 AUGUST 2019

U.S. Policy Shifts In Intellectual Property Antitrust Enforcement

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Under the Trump administration's leadership, the Antitrust Division of the Department of Justice (DOJ) appears to be changing its enforcement approach toward intellectual property (IP) issues.

United StatesAntitrust/Competition Law
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Under the Trump administration's leadership, the Antitrust Division of the Department of Justice (DOJ) appears to be changing its enforcement approach toward intellectual property (IP) issues arising in the context of standard-setting organizations (SSOs).

In particular, statements made over the past year by Assistant Attorney General (AAG) Makan Delrahim signal a clear departure from prior agency policy regarding the role of antitrust law in addressing violations of fair, reasonable and non-discriminatory (FRAND) commitments made by standardessential patent (SEP) holders as part of the standard-setting process. While the DOJ and Federal Trade Commission (FTC) have historically taken the position that the antitrust laws may reach such violations, Delrahim has indicated that the DOJ under his watch will focus instead on potential antitrust violations by SEP licensees and on the potential  for collusive behavior by SSOs and  their participants.

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