On February 26, 2014, Renata B. Hesse, Deputy Assistant Attorney General Antitrust Division of the U.S. Department of Justice (DOJ), gave a keynote address at the 6th Expert Forum on ITC Litigation & Enforcement in Washington, D.C. sponsored by American Conference Institute.  The keynote address was on the subject “Competition and the Public Interest:  Applying the Joint DOJ/PTO Policy Statement at the ITC.”  Ms. Hesse made it clear that the President’s disapproval of the ITC’s exclusionary remedy issued by the Commission with respect to Samsung’s declared standard essential ’348 patent in the 794 Investigation does not mean an exclusionary remedy cannot be obtained for a declared standard essential patent.  Ms. Hesse advised that the DOJ believes there are situations where an exclusionary remedy can be obtained.  She noted the DOJ/PTO Policy Statement’s reference to a “constructive refusal to negotiate, such as by insisting on terms clearly outside the bounds of what could reasonably be considered to be F/RAND terms.”  She also noted that there can be other circumstances where an exclusionary remedy may be warranted, such as, for example, where a putative licensee forces a licensor to sue the licensee in multiple fora.  In response to an audience question, Ms. Hesse advised that DOJ would potentially be open to considering the fairness of a Panduit kicker if a putative licensee’s constructive refusal increases the cost of litigation.