DOJ Changing Its Antitrust Approach To FRAND And SEPs

In November 2017, Assistant Attorney General (AAG) Makan Delrahim reignited a debate about antitrust enforcement in the context of standard-setting organizations (SSOs),¹ standard essential patents (SEPs), and agreements to price SEPs on fair, reasonable, and non-discriminatory (FRAND)² terms. Prior to the Trump administration, the Department of Justice (DOJ) and Federal Trade Commission (FTC) had taken similar approaches. Both agencies expressed concerns about the competitive implications of patent holders that had made FRAND commitments obtaining injunctive relief to exclude willing licensees. AAG Delrahim, over the past year or so, has moved DOJ in a direction that allows SEP holders more freedom to use the exclusionary potential of those patents. DOJ also has redirected its focus toward the conduct of licensees and the SSOs themselves.