DOJ Antitrust Division Economics Director of Enforcement Jeffrey Wilder on SEPs

Jeffrey Wilder, the U.S. Department of Justice Antitrust Division Economics Director of Enforcement, gave a speech yesterday before the IAM and GCR Connect SEP Summit in Washington.  Here is a link to the text, which I perceive as a welcome return to sanity.  The key paragraph that summarizes the Antitrust Division's approach under the Biden Administration is as follows: 

First, the Antitrust Division will open investigations and bring enforcement actions when anticompetitive conduct—by SEP holders or any other participants in the standards development process—harms competition. That does not mean that every licensing dispute invites an antitrust challenge. Antitrust claims are not a panacea for failed bilateral negotiation. But antitrust can and should play a role when the standards-setting process is used to thwart competition and harm consumers. Second, the Antitrust Division will promote government policies that encourage good-faith licensing negotiation. That includes providing clearer guidance on what good-faith negotiation looks like and how bad-faith conduct can hinder competition. Third, the Antitrust Division will support (and not discourage) SDOs in their efforts to adopt IPR policies that address licensing inefficiencies and enable the dissemination of standardized products to consumers. Finally, the Antitrust Division will strive to be transparent about our enforcement priorities and policy changes to ensure that firms participating in the standards ecosystem understand what conduct can run afoul of the antitrust laws.

The speech goes on to note that in recent months the Division has begun to review its widely-criticized December 2019 SEP Remedies Statement, as directed by President Biden’s July 9 Executive Order, and has downgraded the Division’s 2020 supplemental letter to the IEEE as advocacy (see here, here).  Also of interest is a statement towards the beginning of the speech, where Mr. Wilder says that the Division’s “analysis of intellectual property aims to appropriately reflect the competing policy considerations, the realities of innovation in the modern economy, and the law. It also generally aligns with the views of the Federal Trade Commission, and we have been working intensely to ensure collaboration and communications between the intellectual-property experts on the staff of each agency.”  I take this to mean we should not expect the agencies to work at cross-purposes, as they did in FTC v Qualcomm.  And it’s also interesting that, in referring to the Division’s activities “in recent years aimed at encouraging standards development and good-faith SEP licensing”—including the issuance of “business review letters to SDOs and patent pools,” the release of “guidelines on the appropriate remedies for infringing SEPs subject to FRAND commitments and IP licensing generally,” the filing of “amicus briefs and statements of interest in district and appellate courts,” and “competition advocacy with SDOs and their accrediting organization ANSI”—he states that “[m]any of these steps helped make standards development and SEP licensing more competitive and efficient. Others arguably did not” (my emphasis).

If this had been a Makan Delrahim speech, it would have been prefaced with the title of a classic rock song, so I’ll suggest one of my own: