Letter from Former Government Officials and Academics to Assistant Attorney General Jonathan Kanter on Policy Toward Standard-Essential Patents and FRAND Commitments

ABSTRACT:

In 2018, a large group of former antitrust enforcers and scholars wrote to the Assistant Attorney General (AAG) in charge of the Antitrust Division about the Division’s sharp departure from the long-standing, bipartisan consensus regarding standard essential patents and commitments to license on fair, reasonable, and nondiscriminatory (FRAND) terms.

In 2019, the Antitrust Division, together with the U.S. Patent and Trademark Office and National Institute of Standards and Technology, issued a policy statement that reflected the AAG’s out-of-the-mainstream position on these issues. The Division has called for comments on a new statement that is more consistent with patent and antitrust law. A chorus of criticism of these reasonable guidelines has been unleashed. But the fundamental points we made in our 2018 letter still stand.

A similar group of former enforcers and scholars joined the attached letter, which forwards the original letter and explains the need for a return to the previous consensus.

In a nutshell, we urge a return to that long-standing, prior consensus on the proper balance between innovation and competition in the standard-setting context. Enforcement and policy at the interface of antitrust and intellectual property should recognize the utilitarian underpinnings of both areas of law and should also appreciate the importance of protecting against anticompetitive holdup consistent with the general standards concerning the availability of injunctive relief. The letter also responds to the arguments that have been voiced to reject the consensus, finding them inconsistent with the available evidence, law, and sound public policy.