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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.

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