DOJ Merger Statement Renews Focus on Competitive Implications of Industry Standards

Donald Falk, Christopher Kelly, Apr 30, 2012

…The DOJ’s statement has caused some consternation, as it signals at the very least that the agency may be willing to use the merger review process to discourage-and possibly even extract concessions related to-a company’s lawful exercise of its intellectual property rights, even where the DOJ acknowledges that the acquisition itself would not be anticompetitive. It is not clear that the DOJ will intervene more aggressively to regulate intellectual property licensing in the future.  It appears at least possible, however, that the statement indicates a desire on the part of the DOJ, in conjunction with the FTC, to move antitrust regulation over intellectual property rights closer to the compulsory licensing model that the European Commission has pursued in response to alleged abuses of dominance in violation of Article 102.

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