Posts in Antitrust

IP/Antitrust Policy Changes are Afoot in the Biden Administration’s DOJ

The intersection of intellectual property (IP) and antitrust law is again a hot debate after a recent speech by the U.S. Department of Justice Antitrust Division’s (“DOJ” or “Division”) Economics Director of Enforcement, Jeffrey Wilder, titled Leveling the Playing Field in the Standards Ecosystem: Principles for a Balanced Antitrust Enforcement Approach to Standards-Essential Patents. Before we dive in on the key takeaways from the speech, and our thoughts on potential ramifications, it bears briefly mentioning how we got here.

Jonathan Kanter Responses to Senate Provide Insight on Approach to Antitrust-IP Nexus

On July 20, President Joe Biden nominated Jonathan Kanter as Assistant Attorney General, a position that would place him at the head of the Antitrust Division at the Department of Justice. Kanter is an antitrust lawyer with over 20 years of experience. He is currently a partner at The Kanter Law Group LLP, which is a boutique antitrust law firm that advocates in favor of federal and state antitrust law enforcement. Prior to founding the The Kanter Law Group, he was Co-Chair of the antitrust practice at Paul, Weiss, Rifkind, Wharton, and Garrison LLP. Kanter also served as an attorney for the U.S. Federal Trade Commission’s Bureau of Competition. 

Judge Koh Responses on Antitrust-IP Intersection Promise More of the Same

On October 5, the Senate Judiciary Committee considered the nomination of Judge Lucy Koh, currently of the U.S. Federal District for the Northern District of California, to an appointment by President Biden to the United States Court of Appeals for the Ninth Circuit. After that hearing, several Senators submitted written questions, which Judge Koh responded to last week. There is no indication that Judge Koh’s nomination to the Ninth Circuit is in jeopardy, but it is noteworthy, and at least somewhat unusual, numerous Senators asked Judge Koh virtually the same questions regarding her decision in FTC v. Qualcomm. This level of overlapping interest by multiple members of the Senate Judiciary Committee, which IPWatchdog.com has learned was not coordinated and developed organically, is normally reserved for nominees to the Supreme Court, and even then, typically reserved to social or constitutional issues. So, even though it is believed Judge Koh can and will easily receive a favorable confirmation vote, the questions relating to the intersection of antitrust and patent law demonstrate a keen awareness and interest in these issues on the Senate Judiciary Committee.

Senators Tear into Facebook and Google Reps During ‘Big Data, Big Questions’ Hearing on Competition and Privacy

The Senate Judiciary Committee’s Subcommittee on Competition Policy, Antitrust, and Consumer Rights held a hearing yesterday titled “Big Data, Big Questions: Implications for Competition and Consumers,” in which both Republican and Democratic senators pushed representatives of Facebook and Google to answer difficult questions about their platforms’ impact on everything from competitive marketplaces to teenagers’ body image. The hearing is one in a series that aims to conduct a bipartisan review of America’s competition issues, according to Subcommittee Chair, Amy Klobuchar (D-MN).

The FTC’s Repair Restriction Ambition May Face Friction

The Federal Trade Commission (FTC) has pledged to use more of its enforcement resources to ensure that consumers are free from manufacturer-imposed restrictions on self-repair or third-party repair, to the maximum extent allowed under the law. The unanswered question is: how far does the law allow the FTC to go? The answer is, quite possibly, not as far as the White House or the new Chair of the FTC, Lina Khan, would like. One problem for the FTC: doubts about the authority granted to the agency under the FTC Act. Another hurdle will be the legal protections granted to manufacturers—both as market participants responding to consumer demand and, in many cases, as the owners of intellectual property rights. This blog has already discussed some of the ways that the “right to repair” movement might conflict with copyright protections. Here, we focus on the limits of the FTC’s authority and antitrust doctrine, as well as conflicts with patent law.

IPWatchdog LIVE Event Wraps Up with Featured Speakers Makan Delrahim and Vishal Amin

On day three of IPWatchdog LIVE in Dallas, Texas, former Assistant Attorney General in charge of the Antitrust Division at the U.S. Department of Justice (DOJ), Makan Delrahim, who is now a Member of the Board of the Directors at Osiris Acquisition Corporation and a Lecturer in Law at the University of Pennsylvania, told attendees of the event that it’s unfortunate that antitrust [and its interaction with intellectual property rights] has become a partisan issue when “it doesn’t need to be.” Delrahim recalled during a Luncheon Fireside Chat with IPWatchdog Founder and CEO Gene Quinn that, 20 years ago, when he was detailed to the Office of the U.S. Trade Representative (USTR), “the approach to strong IP was a unifying issue, and something that was not questioned, nor its value.” He added that he has become a bit discouraged by the “echo chamber” that has been created about IP to “devalue its actual impact on economics and on society”—particularly when our trading partners, like China, have realigned to recognize the value.