SPRING 2019 TODAY’S GENER AL COUNSEL
Intellectual Property
DOJ Withdraws Assent to Key IP Policy By Kathi Vidal, Andrew B. Grossman, Susannah P. Torpey and Ian L. Papendick
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n a December 2018 speech before the Berkeley-Stanford Advanced Patent Law Institute, Assistant Attorney General (AAG) Makan Delrahim, head of the DOJ’s Antitrust Division, announced that the DOJ has withdrawn its assent to the 2013 Policy Statement on Remedies for StandardsEssential Patents Subject to Voluntary FRAND Commitments (the Joint DOJ/
USPTO Policy). He elaborated upon the DOJ’s enforcement approach to standard setting organizations (SSOs). Although it is always notable when the DOJ and other agencies change or withdraw their previously published guidance, AAG Delrahim acknowledged that the relevant Supreme Court authority and other precedent is unaffected by the DOJ’s policies, and provides the ap-
propriate guidance on how injunctions relating to standards-essential patents (SEPs) and antitrust issues relating to SSOs should be analyzed. The substantive focus of Delrahim’s remarks was on the increased investigatory and enforcement scrutiny that the DOJ will take with respect to SSOs’ compliance with the antitrust laws. Based on remarks that Delrahim has
