In September 2020, the DOJ updated its 2015 business review letter to the Institute of Electrical and Electronics Engineers (“IEEE”) standard development organization (“SDO”) that evaluated the IEEE then-imminent revision of its patent policy. The Division undertook this “extraordinary step” in light of an extraordinary and unprecedented set of circumstances, that included systematic misrepresentation and mischaracterization of the Division’s 2015 business review letter (“2015 BRL”), as well as developments that showed the 2015 BRL’s factual and legal predictions did not materialize. This paper reviews the updated 2020 Division business review letter to IEEE (“2020 BRL” or “BRL”) and the circumstances against which it was issued. It then reviews and analyses certain aspects of the BRL, including ongoing bipartisan concern over the impact of the 2015 BRL and underlying policy, and the need for caution in similar future contexts.

By Dina Kallay1

 

I. INTRODUCTION

On September 10, 2020, the United States Department of Justice Antitrust Division (“DOJ,” “Division,” or “Department”) updated its 2015 business review letter2 to the Institute of Electrical and Electronics Engineers (“IEEE”) standard development organization (“SDO”) that evaluated the IEEE’s then-imminent revision of its patent policy.3 The Division undertook this “extraordinary step”4 in light of an extraordinary and unprecedented set of circumstance

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