In recent weeks the U.S. antitrust agencies have made clear their belief that it may be a violation of the competition laws for a holder of standard essential patents (SEPs) to seek an injunction against alleged infringers of those patents. Less than a week after the Federal Trade Commission (FTC) attempted to "set a template for the resolution of SEP licensing disputes" in its settlement with Google barring the patent holder from enforcing the exclusionary rights of its SEPs in certain circumstances, the Department of Justice, Antitrust Division expressed similar views.1 On Jan. 8, the Justice Department issued an unusual joint policy statement with the U.S. Patent and Trademark office (USPTO) in which it urged the U.S. International Trade Commission (ITC) to avoid ordering injunctions in certain cases.2
The agencies have a long history of attempting to use their enforcement authority to police the licensing of SEPs (with varying degrees of success).3 However, these latest statements have taken the agencies’ attempts to regulate conduct a step further, and raise serious questions about how companies whose patents have been incorporated into industry standards will be allowed to enforce their intellectual property rights in the future. The agencies would be well-advised to provide clarity on their recent statements and to generally proceed with caution in this area as their policies could have dangerous long-term effects on investment in research and development, innovation and competition.
