DOJ Antitrust Policy Change Favoring SEP Injunctions Sparks Debate with Tech and Auto Industries

May 3, 2019

US antitrust policy toward standard essential patent (SEP) licensing has historically focused on anticompetitive behavior by patent holders. In 2013, this posture was formalized in a joint policy statement issued by the Department of Justice’s Antitrust Division and the USPTO, which in part cautioned against the imposition of injunctive relief in SEP licensing disputes in most circumstances. However, in late 2017, the DOJ began signaling that it would chart a new course on SEP antitrust enforcement favoring the use of exclusionary remedies for SEP holders—a policy shift that was made official this past December, when the Antitrust Division formally withdrew from the 2013 policy statement. These changes have sparked a heated debate, with those supporting the existing policy arguing forcefully for its return. The latest of those efforts is an open letter released on April 22 by a coalition of stakeholders including tech companies, automakers, and industry trade associations urging that the USPTO remain a party to the agreement, warning that abandoning decades of well-established, bipartisan policy would harm innovation.

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