Delrahim, head of the DOJs antitrust division said in a speech yesterday, that violating a promise to license on fair, reasonable and nondiscriminatory terms can be considered exclusionary conduct under antitrust law only if the behaviour makes no economic sense for the breaching party.
Speaking at IAM’s Patent Licensing Conference in San Francisco, Delrahim said he believes that antitrust policy should encourage dynamic competition in the face of barriers to innovation and change. “As part of that effort, we at the Antitrust Division over the past year have taken a fresh look at how antitrust enforcers and the courts have sought to apply the antitrust laws in the context of intellectual property disputes. ” he continued.
“The first prong of the “New Madison” approach is that antitrust law should not be used as a tool to police FRAND commitments that patent-holders unilaterally make to standard setting organizations. I have previously spoken at length regarding why the theory and evidence of unilateral “hold-up” by patent-holders does not provide an adequate basis to condemn such conduct under the antitrust laws generally.”
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