IEEE Business Review Letter: The DOJ Reveals Its Hand

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Hugh Hollman, Mar 31, 2015

Given the impact of technology standards, greater transparency into the mechanics of private SDOs is ultimately very valuable, as are the government’s publicized views of those standard setting activities. As explained by Bill Baer, Deputy Attorney General of the DOJ: “[o]ffering guidance about our enforcement priorities, whether through formal guidelines, business review letters, or speeches, helps [businesses] make plans and provides a good opportunity for the Division to educate businesses, the courts, and the public about our current approach to antitrust analysis.” But there is a vast difference between providing guidance and transparency as opposed to forcing parties to apply specific terms. With mandatory terms, there are inevitable consequences that may ultimately favor one of the parties in F/RAND negotiations. In this case, the changes appear to reflect a policy choice that favors technology users at the expense of patent holders.