As we have previously addressed, the Federal Trade Commission (FTC) and Department of Justice, Antitrust Division have demonstrated an increasing appetite for scrutinizing disputes involving standard essential patent (SEP) holders.1 In the last year, both agencies have been particularly hawkish with respect to limiting SEP holders’ rights to seek injunctive relief against alleged patent violators.2 In our earlier article, we cautioned that the agencies should proceed carefully in this arena given the potential deterrence of innovation and competition, and we suggested that the agencies create clear standards as to when SEP holders risk violating the antitrust laws by seeking injunctive relief.3 And, in fact, the agencies have since stepped up their rhetoric with respect to limiting SEP holders’ ability to seek injunctive relief, leading many to perceive an inexorable march toward greater antitrust involvement in the patent arena.4 However, recent statements from FTC Commissioner Joshua Wright suggest that antitrust officials may not be as aligned on the issue as it previously appeared.
In his statement, Wright observed that “the antitrust laws are not well suited to govern contract disputes between private parties,”5 which stands in stark contrast to recent statements by other U.S. antitrust officials. In addition, previous statements by both Wright and Commissioner Maureen Ohlhausen suggest that the FTC is ideologically split on the question of whether SEP holders violate the antitrust laws merely by seeking injunctive relief against alleged patent violators. This split has significant potential ramifications for near-term enforcement efforts, and it poses significant questions regarding long-term policies ahead of the pending confirmation of Terrell McSweeny to fill the fifth commissioner’s seat.
