Delrahim: Antitrust Division Withdraws From FRAND Statement

DOJ’s Antitrust Division is withdrawing its agreement to a 2013 policy statement on patents subject to voluntary fair, reasonable and nondiscriminatory (FRAND) terms. Created by DOJ and the Patent and Trademark Office, it hasn’t “accurately conveyed our position about when and how patent holders should be able to exclude competitors from practicing their technologies,” Assistant Attorney General Makan Delrahim said Friday at the Berkeley-Stanford Advanced Patent Law Institute in Palo Alto, California. He said DOJ will work with PTO on a new statement. Delrahim said standard-setting organizations (SSOs) “may make it too easy for patent implementers to bargain collectively and achieve sub-optimal concessions from patent holders that undermine the incentive to innovate.” There's a potential antitrust problem where a group of product manufacturers within an SSO “come together to dictate licensing terms to a patent holder as a condition for inclusion in a standard because it may be a collective exertion of monopsony power over the patent holder,” the antitrust chief said, saying such collusion can undermine innovation. As the American National Standards Institute considers creating a sample patent letter of assurance form that SSOs could use, he said the Antitrust Division has been in touch with ANSI to ensure “its efforts do not stifle competition among the standard-setting organizations.” ANSI didn’t comment.