The 2015 DOJ IEEE Business Review Letter: The Triumph of Industrial Policy Preferences Over Law and Evidence

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Roy Hoffinger, Mar 31, 2015

The IEEE BRL is deeply flawed and even disturbing. Tellingly, the IEEE BRL says little or nothing about the policies reflected in patent law, decades of settled antitrust law applicable to coordinated action on buyer prices, BRLs issued by DOJ during prior administrations regarding coordinated conduct within SSOs by buyers of intellectual property rights, and the evidence and arguments submitted to the Division by multiple patent-holder companies who are the targets of the Revised Rules. When ignoring relevant law, arguments and evidence is not enough to reach the conclusion desired by today’s Antitrust Division—its IEEE BRL misstates the provisions of the rules to make them more defensible.

For these reasons, the IEEE BRL thus should not be viewed as an interpretation of antitrust law or its relationship to patent law. Rather, the IEEE BRL is an expression of the industrial policy preference of today’s DOJ for potential short-term price reductions at the expense of providing long-term incentives to engage in R&D for technologies useful in standards, contrary to the key premise underlying patent law—a premise that historically has been accorded great respect by antitrust courts.