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Stuart Chemtob, Mar 16, 2015
The Antitrust Division of the Department of Justice failed to give adequate attention to the effects on innovation incentives when issuing a favorable Business Review Letter to the Institute of Electrical and Electronic Engineers, Inc. regarding the IEEE’s Update to its patent policy. Instead, the DOJ appears to have based its conclusion that the Update will have pro-competitive effects on policy preferences rather than a careful Rule of Reason analysis.
The DOJ’s devaluing of concerns about harm to innovation incentives has serious implications that will affect the choices made by other SSOs, as well as enforcement policies of foreign competition authorities looking to U.S. antitrust law for guidance on the proper relationship between antitrust laws and intellectual property laws.