Antitrust

1 0 4 In March 2018, Delrahim outlined the DOJ's 'New Madison' approach (so named after founding father James Madison's views on the necessity for strong patent protection) to the antitrust- IP nexus. Strongly favoring SEP holders, the New Madison approach lays out the following four principles: 1. Antitrust law should not play a role in enforcing FRAND commitments; 2. SSOs' policies should not skew conditions in favor of SEP implementers; 3. SSOs should protect patent holders' right to exclude; and 4. A unilateral and unconditional refusal to license a patent should be per se legal. UNILATERAL CONDUCT 19 T H E N E W M A D I S O N A P P R O A C H L A Y S O U T F O U R P R I N C I P L E S U.S. Policy Shifts in Intellectual Property Antitrust Enforcement Delrahim's new approach in effect provides technology implementers with no protection under the antitrust laws from abusive conduct by SEP licensees. The approach thus diverges from the DOJ's past policies, and it also represents a departure from the enforcement policies of the FTC and many other antitrust agencies around the world. To this end, Delrahim explained in September 2018 that, under the New Madison approach, the DOJ also will be increasing its domestic and international advocacy efforts in order to 'modernize' global antitrust policy concerning IP. As further evidence of its new approach, in December 2018, the DOJ withdrew from the 2013 'Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary FRAND Commitments' that it had jointly made with the U.S. Patent and Trademark Office. In January 2019, the DOJ also stated that it planned to file a 'statement of interest' in a private lawsuit in which one company (U-blox) accused another (InterDigital Inc.) of antitrust law violations from charging excessive royalties for SEPs. FTC At the FTC, a new slate of five Commissioners took office last year, including Joseph Simons, who in May 2018 was sworn in as Chairman. In September 2018, Simons expressed his agreement with Delrahim that breach of a FRAND commitment, and even a fraudulent promise to abide by a FRAND commitment, is not on its own an

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