How the Trump administration views the relationship between IP and antitrust promises to have far reaching consequences for patent owners in the US and beyond. There’s no doubt that the nexus between the two areas has become a far bigger point of contention in recent years as regulators around the world have clamped down on the practices of some owners of standard essential patents (SEPs). Qualcomm has become the preferred the target of several competition watchdogs racking up fines for its licensing practices in several Asia countries including last month from authorities in Taiwan.
As a result, recent comments from Makan Delrahim, who was confirmed as the top antitrust lawyer at the Department of Justice in late September, are sure to interest patent owners, and the holders of large portfolios of SEPs in particular.
In a speech at New York University’s School of Law, Delrahim sketched out his vision for antitrust enforcement and called on regulators around the world to work together on the overlap between IP and antitrust through the International Competition Network (ICN). He described the relationship between the two areas as “one issue ripe for deeper discussion” and added: “I would strongly support efforts in the ICN to make progress in this area.” He went on: “We need to be sure that antitrust enforcement does not impede incentives for innovation that intellectual property laws provide.”
Most IP owners will be looking for a lot more guidance from Delrahim on specific actions he will take, but there were principles that ran through his comments - such as developing “a mutual consensus toward non-discriminatory enforcement of antitrust laws worldwide” - that are sure to chime with SEP licensors. He also touched upon the renegotiation of several US trade deals including NAFTA and the agreement with Korea, which contain significant IP provisions, and outlined a commitment to invest in the international section of the DOJ’s Antitrust Division, which is particularly notable for an administration noted more for its cuts than expansion.
There’s much we still don’t know about how the US government will shape IP and antitrust in the next few years, but outside of the USPTO Director’s appointment — which, barring any accidents is due to be Andrei Iancu — Delrahim promises to have arguably the biggest impact on the IP community of any recruit to the Trump administration. The Obama White House set a far more activist tone when it came to the application of competition laws to IP, recommending, for instance, a change of approach for standard setting organisations which led to the IEEE introducing a new patent policy that several large SEP owners have refused to support.
That approach has led to some sharp criticism from some quarters. Earlier this year former FTC Commissioner Joshua Wright, who is now a law professor at George Mason University, told an IP industry event in Washington DC that: “It is my view that there is no more important area with respect to competition policy for the incoming administration than the intersection of IP and antitrust.” He went on to add: “In my view current antitrust IP policy at the DOJ and FTC is off the tracks.” To what extent Delrahim charts a new course for that policy will have significant implications for patent owners worldwide.