Posts Tagged: "Department of Justice"

Tillis to Garland/ Kanter: Pursuit of New Draft Policy on SEPs Shows a ‘Failure of innovation Leadership’

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.

Return of the ‘Hold-Up’ Bogeyman: Analyzing the 2021 Draft Policy Statement on SEPs Subject to Voluntary F/RAND Commitments (Part III)

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”):

The DOJ Antitrust Division: Regulatory Capture at the Expense of U.S. Interests

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.

Despite ‘Tortured’ Statement from FTC’s Slaughter, Win for Qualcomm is a Win for American Innovation

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.

Concerns Surface Over Big Tech Ties of Biden’s Pick to Head DOJ Antitrust Division

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.

The Threat to the New Madison Intellectual Property Approach

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.

David Kappos Reflects on the Developing Landscape for SEPs at IPWatchdog’s SEP2020

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.

DOJ Affirms Pro-Competitive Benefits of End-Device Licensing in Avanci 5G Platform Review

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.

Examining Antitrust Guidance on Cooperation in Fighting COVID-19

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.

Antitrust and Patents: A Conversation with Makan Delrahim

Last week, as a part of the Virtual Patent Masters™ Program hosted by IPWatchdog, I had the opportunity to interview Makan Delrahim, who is Assistant Attorney General in charge of the Antitrust Division at the U.S. Department of Justice (DOJ). During his tenure at the Antitrust Division, AAG Delrahim has moved the policy of the federal government in a direction that is viewed as being more friendly to patent owners and innovators. For example, in December 2018, Delrahim indicated that the Antitrust Division was withdrawing its assent to the to the 2013 joint DOJ-U.S. Patent and Trademark Office Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments (the 2013 Joint Policy Statement) during remarks delivered at the 19th Annual Berkeley-Stanford Advanced Patent Law Institute. It was the Delrahim’s view that patent remedies shouldn’t be unilaterally unavailable for one category of patent simply because the patent owner may be subject to an obligation to engage in fair, reasonable and non-discriminatory negotiations with implementers.

Clearing Up Confusion on SEPs: A Line-by-Line Response to a Problematic Essay

I recently became frustrated after reading an essay in the AIPLA newsletter by an attorney with Taft Stettinius & Hollister LLP on the topic of the new USPTO-DOJ-NIST Joint Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments. I have seldom seen a writing where I disagree with everything a man writes, with the exception of a joke and his name. I took it apart paragraph by paragraph; my comments follow in red, while the author’s original text is in black.

Netlist Wins ITC Exclusion Order: Will the USPTO Support It?

Several weeks ago, the International Trade Commission (ITC) announced that Chief Administrative Law Judge (ALJ) Charles Bullock issued a Notice of Initial Final Determination recommending that certain memory modules manufactured and imported by SK Hynix, Inc. and its subsidiaries should be excluded from importation into the United States. As is common with these announcements, the ITC first released a one-page indication of the decision, which was followed by the redacted full decision once the parties had an opportunity to request redaction of trade secrets and confidential information. The full decision has now been released, and the ITC is asking for comments relating to public interest issues from the parties, interested persons, and other government agencies and departments.

Delrahim, Simons Caution House Subcommittee Against Drawing Bright Lines on Antitrust Enforcement of Big Tech

The House Subcommittee on Antitrust, Commercial, and Administrative Law yesterday heard from Joseph Simons, Chairman of the Federal Trade Commission, and Makan Delrahim, Assistant Attorney General in the Department of Justice’s Antitrust Division as part of the Subcommittee’s fourth hearing in its “Online Platforms and Market Power” series. The latest hearing focused on the perspectives of the antitrust authorities, while previous hearings have examined the effects of the big tech companies on innovation and entrepreneurship; online platforms’ effect on a free and diverse press; and the role of data and privacy in competition. While both Delrahim and Simons said they are aggressively investigating and monitoring dominant platforms like Facebook and Google, they warned against overreach. Subcommittee Chair David Cicilline (D-RI) expressed his concern that, over the past decade, the largest tech firms have acquired more than 436 companies, “many of which were actual or potential competitors,” without intervention from antitrust enforcement authorities. The last major monopolization case was brought in 2001 against Microsoft, Cicilline noted. “This has created a de facto antitrust exemption for online platforms.,” he said, questioning whether the failure lies in the need for congressional action to amend and strengthen existing laws, a lack of agency resources to effectively combat the problem, or simply a lack of will to enforce the laws on the books.

Tillis and Coons Nudge DOJ to Provide Revised Joint Statement on SEPs

Senators Thom Tillis (R-NC) and Chris Coons (D-DE), Chair and Ranking Member, respectively, of the Senate Judiciary Committee’s Subcommittee on Intellectual Property, sent a letter on October 21 to U.S. Attorney General William Barr and Assistant U.S. Attorney General, Antitrust Division, Makan Delrahim, asking them to “work with the United States Patent and Trademark Office (USPTO) to provide guidance on remedies for infringement of standard-essential patents (SEPs) subject to fair, reasonable and nondiscriminatory (FRAND) licensing commitments.” Tillis and Coons applauded the Department of Justice (DOJ), Antitrust Division’s decision to withdraw from the 2013 joint DOJ-U.S. Patent and Trademark Office “Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments,” but expressed concerns over a “growing divide” among the Department of Justice, the Federal Trade Commission (FTC) and the USPTO about the role of antitrust law in policing SEPs.

Other Barks & Bites, Friday, September 20: CAFC Issues Precedential Decisions on Patent Term Adjustment, DOJ Announces Trade Secret Charges, USPTO Urges CAFC Deference to POP

This week in Other Barks & Bites: the Federal Circuit issued a pair of precedential opinions affirming the USPTO’s determinations on patent term adjustment; Chuck Yeager filed a trademark lawsuit against Airbus; Facebook CEO Mark Zuckerberg met with Capitol Hill lawmakers and President Trump; the Office of Technology Assessment Improvement and Enhancement Act was introduced into both houses of Congress; the Sixth Circuit affirmed the dismissal of a copyright case lodged against musician Steve Winwood; the U.S. Department of Justice announced criminal charges over the theft of pediatric medicine trade secrets; and the NMPA doubled the damages sought against Peloton after finding more unlicensed songs used by the streaming exercise companies.