DOJ Should Withdraw Improper Intervention In SEP Cases

By Jay Jurata and Emily Luken (August 24, 2021, 5:14 PM EDT) -- During the Trump administration, the Antitrust Division of the U.S. Department of Justice forcefully advocated against the application of competition law to disputes involving standard-essential patents subject to a commitment to license on fair, reasonable and nondiscriminatory terms.

Spearheaded by former Assistant Attorney General for Antitrust Makan Delrahim, the prior DOJ pursued an aggressive campaign to advance its "New Madison" approach. This approach argued, among other things, that antitrust law was not an appropriate vehicle through which to address an SEP holder's breach of FRAND. 

The prior DOJ's advocacy campaign included intervening in multiple district court cases under Title 28 of...

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