Antitrust enforcers have a role to play in IP, say EU official, former DOJ division head

13 April 2018 6:46am
Patent Key on Keyboard

12 April 2018. By Leah Nylen.

Antitrust enforcers have an important role in the intellectual property sphere, the EU’s most senior competition official and the former Obama antitrust chief said on Thursday, countering comments by the Trump administration's Assistant Attorney General for Antitrust Makan Delrahim.

Delrahim has cautioned against antitrust intervention in cases involving patents essential to industry standards.

“We clearly see in Europe, to the standardization process and to the role of standard-essential patents, an antitrust and competition law dimension that goes beyond and exists next to intellectual property rights dimensions,” Johannes Laitenberger, director general of the Directorate-General for Competition, told a Washington, DC, conference* on Thursday.

“We, at this point in time, would not think there is a need on our side to rethink, rebalance or readjust that approach.”

Bill Baer, who served as assistant attorney general for antitrust from 2013 to 2016, also questioned Delrahim’s recent remarks that antitrust shouldn’t be used to police disputes over what constitutes fair, reasonable and non-discriminatory royalties for standard-essential patents.

“There are behavior patterns where somebody with a valuable and valid intellectual property right and [who] is entitled to a royalty based on the value of that invention goes into a standard-setting body and manipulates the body,” Baer said. “Where there is misrepresentation, commitments made, and one can show that in a properly defined antitrust market there’s an injury to consumers and competition, I think antitrust enforcers have a role.”

On Tuesday, Delrahim stressed that antitrust enforcement shouldn’t undermine the right of patent holders to defend their intellectual property. In a series of three speeches in recent months, he has signaled a break with Obama-era thinking on whether injunctions on standard-essential patents can be anticompetitive.

Under Baer, EU and US enforcers arrived at a consensus on how the use of an injunction against a company willing to take a license could be a breach of competition rules.

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