1 0 2
In particular, statements made over the
past year by Assistant Attorney General
(AAG) Makan Delrahim signal a clear
departure from prior agency policy
regarding the role of antitrust law in
addressing violations of fair, reasonable
and non-discriminatory (FRAND)
commitments made by standard-
essential patent (SEP) holders as part
of the standard-setting process. While
the DOJ and Federal Trade Commission
(FTC) have historically taken the position
that the antitrust laws may reach such
violations, Delrahim has indicated that
the DOJ under his watch will focus
instead on potential antitrust violations
by SEP licensees and on the potential
for collusive behavior by SSOs and
their participants.
BACKGROUND
SSOs are industry groups that establish
compatibility standards, which enable
interoperability of products made
by different manufacturers. Such
standards are a critical part of the digital
technology sector in particular, where
interconnectivity would not be possible
without the widespread adoption of
standardized technologies. Thus, antitrust
agencies have long recognized that
standard-setting supports growth and
innovation, and is usually pro-competitive
and efficiency-enhancing.
By its very nature, however, the standard-
setting process also can reduce
competition and create antitrust risk.
The process typically involves groups
of competitors who collectively choose
between competing technologies to
UNILATERAL CONDUCT
19
T H E S T A N D A R D -
S E T T I N G P R O C E S S
A L S O C A N R E D U C E
C O M P E T I T I O N
A N D C R E A T E
A N T I T R U S T R I S K
U.S. Policy Shifts in Intellectual
Property Antitrust Enforcement
