Posts Tagged: "Department of Justice"

In a laudable effort to curtail rampant corporate IP theft, a bipartisan group of U.S. Senators has called on a hesitant Department of Justice (DOJ) to step up its enforcement. As reported in Forbes, Senators Thom Tillis (R-NC), Chris Coons (D-DE), and Marsha Blackburn (R-TN) recently issued a letter to the DOJ identifying the core gap in its prosecution habits. Their primary complaint was “the DOJ’s focus on individual, as opposed to corporate, offenders.” This is an oversight that must be corrected. 

Recent policy announcements by the U.S. Department of Justice (DOJ) regarding the selective prosecution under the Computer Fraud and Abuse Act of 1986 (CFAA) has had the unintended consequence of alerting cyber criminals that the DOJ cannot walk and chew gum at the same time. The CFAA, a landmark 1986 legislation, prohibits accessing a computer without authorization or in excess of authorization.

The U.S. Department of Justice (DOJ) and the Attorneys General of eight U.S. states on Tuesday announced they are suing Google for antitrust violations of the Sherman Act with respect to the tech company’s monopoly on digital advertising technology. The Attorneys General of California, Colorado, Connecticut, New Jersey, New York, Rhode Island, Tennessee, and Virginia joined the suit. In a 155-page complaint filed in the Eastern District of Virginia, the DOJ and Attorneys General explained that Google “has corrupted legitimate competition in the ad tech industry by engaging in a systematic campaign to seize control of the wide swath of high-tech tools used by publishers, advertisers, and brokers, to facilitate digital advertising.”

In a recent surprise decision, the U.S. Department of Justice (DOJ), U.S. Patent and Trademark Office, and the National Institute of Standards and Technology officially withdrew their 2019 Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments and declined to advance an alternative policy statement as a replacement. While the withdrawal of the 2019 policy statement was seen as a foregone conclusion (given the far more SEP-restrictive nature of a December 2021 draft policy statement (DPS) circulated by the agencies), moving forward without any guidance was not on anyone’s DOJ policy bingo card for 2022. The slim guidance that this withdrawal announcement does provide, however, paints a murky picture for the ability of SEP holders to obtain injunctive relief.

The U.S. Department of Justice (DOJ), the U.S. Patent and Trademark Office (USPTO) and the National Institute of Standards and Technology (NIST) have announced that they are officially withdrawing the 2019 Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments. However, the withdrawal does not reinstate the 2013 Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments, which had been harshly criticized by many in the IP community. It also seems to scrap the Draft 2021 Statement, which also drew the ire of the IP world. The DOJ – Antitrust Division issued a request for public comment on a new iteration of the Policy Statement in December 2021. The announcement came in response to President Joe Biden’s July 2021 Executive Order on Promoting Competition in the American Economy, which asked the three agencies to review the 2019 statement.

Senator Thom Tillis (R-NC) today sent a second letter to U.S. Attorney General Merrick Garland and Assistant Attorney General – Antitrust Division at the U.S. Department of Justice (DOJ) Jonathan Kanter expressing concern over the process for releasing, and the substance of, a revised version of the Joint DOJ-U.S. Patent and Trademark Office (USPTO)-National Institute of Standards and Technology (NIST) Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary FRAND Commitments. Tillis sent an initial letter on December 10, 2021, four days after the DOJ published the latest iteration of the Policy Statement for public comment.

In Part II of this series, we considered the language of a specific licensing commitment made to European Telecommunications Standards Institute (ETSI) and the prevailing law relating thereto. In this Part III, we consider the 2021 Draft Policy Statement with a particular view to highlighting its inconsistencies with the ETSI framework and the inapplicability of the hold-up narrative to the situation involving an individual United States patent. Despite its purported purpose of providing the agencies’ views on “remedies for the infringement of standards-essential patents (or SEPs) that are subject to a RAND and/or F/RAND licensing commitment”, the 2021 Draft Policy Statement does not take a clear position on this issue, instead merely stating the following (some might say “the obvious”):

Historically an esoteric area of law, in recent years, antitrust policy is drawing broader attention as a tool to curb the exercise of monopolistic market power, especially by big tech behemoths. Congressional reports on both Democratic and Republican sides of the aisle, multiple legislative initiatives to reform U.S. antitrust law, and a recent book by Senator Amy Klobuchar (D-MN), Chair of the Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights, are some indicators of this trend. Along these lines, broad outcry broke out against rumored Department of Justice (DOJ) Antitrust Division leadership appointments of candidates representing big tech interests, such as Karen Dunn (Apple, Amazon), Renata Hesse (Google, Amazon), Susan Davies (Facebook), and against Deputy Attorney General Lisa Monaco’s (Apple, Google) involvement in deliberations over the nomination of a DOJ Assistant Attorney General (AAG) for Antitrust.

The Federal Trade Commission’s (FTC’s) March 26 deadline for filing a petition for writ of certiorari at the U.S. Supreme Court has come and gone, officially ending the FTC’s opportunity to appeal its loss at the Ninth Circuit in its antitrust enforcement action against semiconductor developer Qualcomm. As federal regulators move on from this final vestige of Obama-era antitrust enforcement activity against patent-related business activities, much of the intellectual property world continues to await key appointments under President Joe Biden that will reveal the tenor of the policy debate in patents and antitrust during the current administration.

Yesterday, Rep. Beth Van Duyne (R-TX-24) sent a letter to President Joe Biden explaining her concerns over recent reports that the leading candidate for the top antitrust post at the Department of Justice (DOJ) is likely to go to long time Democrat antitrust official Renata Hesse, who served in the DOJ Antitrust Division during the Obama Administration as a Deputy Assistant Attorney General and as Acting Assistant Attorney General. Hesse, who has gone in and out of government, has represented both Google and Amazon, companies that are facing antitrust scrutiny from the DOJ, European Union and dozens of state Attorneys General.

Makan Delrahim, the Assistant Attorney General for the Department of Justice’s (DOJ’s) Antitrust Division, has received much-deserved acclaim from fellow intellectual property hawks for his commitment to re-framing the Antitrust Division’s relationship with intellectual property law through a “New Madison” lens. Madison, the founder of the Constitution’s Patent and Copyright Clause, understood the nuanced relationship between the two. Over the last few years, Delrahim has gone to great lengths to restore his vision. It would be a shame if one significant oversight over music industry policy in the coming weeks incites a blemish on his otherwise impeccable three-year track record.

On day one of IPWatchdog’s SEP2020, keynote speaker David Kappos told IPWatchdog President and CEO Gene Quinn that the IP community should not panic about what a Biden administration might mean for standard essential patents (SEPs), or IP more broadly. “I have reason to believe we could see a positive continuation of what we’ve seen in recent years,” Kappos said. “President-Elect Biden comes from a background where he under[stands] IP. I worked with him on IP issues under the first Obama administration and he demonstrated an appreciation for the balance that involves intellectual property. He comes from a state – Delaware – that means business about IP, with a strong specialty chemicals industry in that state, and a strong patent jurisprudence.” Additionally, Biden would have people like Senator Chris Coons (D-DE), who has been “an extremely strong advocate for strong intellectual property,” around him. “I have a tremendous faith in [Coons] as a force for making sure we continue going in the right direction,” Kappos added.

Several weeks ago, the Antitrust Division of the U.S. Department of Justice announced a positive Business Review Letter (BRL) concluding an eight-month review of Avanci’s new platform for licensing 5G standard essential patents. “In sum, the proposed 5G Platform has the potential to yield efficiencies by reducing transaction costs and streamlining licensing for connected vehicles,” wrote Assistant Attorney General Makan Delrahim, who heads the DOJ Antitrust Division. “Together these efficiencies may allow cellular standards-essential patent owners and vehicle manufacturers to focus resources elsewhere, such as investment in further research and development in emerging 5G technologies and applications. This possibility could enhance competition in these technologies, improve safety, and benefit American consumers.” The finding that the Avanci 5G platform could enhance competition is critically important for Avanci, and positively affects the technology licensing landscape.

The novel coronavirus pandemic has upended our lives, creating a far-from-normal “new normal.” And it has also given rise to countless collaborations between and among universities, hospitals, medical centers, pharma companies and others to pool their talent and resources to discover, test, manufacture and distribute diagnostics, treatments, vaccines, personal protective equipment and other resources needed to fight the pandemic. Antitrust law poses no risk to these collaborations, so long as they remain focused on their core missions. But at the same time, antitrust law recognizes that in cooperating and exchanging information and insights for those missions there is the potential for “spill-over effects” that can create antitrust risk. The trick is to know where that dividing line is and to avoid crossing over it.