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Carl Hittinger and Tyson Herrold. Carl Hittinger and Tyson Herrold.

As we discussed in our May 2017 article, the current head of the DOJ’s Antitrust Division, Makan Delrahim, brings considerable intellectual property experience to the division. Delrahim started his legal career at the Office of the U.S. Trade Representative as deputy director for intellectual property rights. He later served on the Intellectual Property Task Force while serving a stint at the DOJ in the early 2000s. Then-acting Antitrust Division Chief R. Hewitt Pate referred to Delrahim as a “patent lawyer.” Therefore, it is not surprising that, in a Nov. 10 maiden speech at the University of California’s Transactional Law and Business Conference, Delrahim chose to discuss antitrust violations in IP licensing, specifically urging federal and state antitrust enforcement agencies to prioritize review of standard setting organizations (SSOs).

Delrahim’s Remarks on Anticompetitive SSO Licensing

SSOs are private associations that, among other things, develop technical, quality and safety standards and that sometimes issue certifications of compliance for products that meet those standards. They usually offer membership to industry participants, from which they obtain funding, and are routinely managed by employees of those organizations. One example of an SSO is the National Fire Protection Association (NFPA). As the Supreme Court explained in Allied Tube & Conduit v. Indian Head, a seminal antitrust case applying the Sherman Act to SSOs, the NFPA is a “private, voluntary organization” of “individual and group members representing industry, labor, academia, insurers, organized medicine, firefighters, and government” that “publishes product standards and codes related to fire protection.” The standards set by the NFPA are “routinely adopted” by “a substantial number of state and local governments.”

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