Delrahim restores balance to antitrust treatment of SEPs

Delrahim restores balance to antitrust treatment of SEPs

By Willard K. Tom (Morgan, Lewis & Bockius LLP)1

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In a recent open letter to Assistant Attorney General Makan Delrahim,2 a group of former government enforcement officials and professors took aim at recent speeches of AAG Delrahim relating to the role of antitrust in standards development activities, claiming that they “are [not] consistent with the broad bipartisan legal and economic consensus that has existed for over a decade regarding standard setting.”  While I regard the signatories of the letter with utmost respect, I believe it is the letter, rather than AAG Delrahim’s speeches, that represents the greater departure from the broad bipartisan consensus on the relationship between antitrust and intellectual property that has existed since at least 1995, and probably before.

From the early 20th century to the mid-1970’s, the attitude of antitrust to intellectual property was marked by a high degree of formalism, judging the legitimacy of a patent-related practice, not by its economic effect in the context of the particular markets in which it operated, but rather by the nature of the practice itself.3  This approach found its apotheosis in the infamous “Nine No-No’s.”4 The Nine No-No’s were a list of nine intellectual property licensing practices that, according to an Antitrust Division official, “in virtually all cases are g…

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