The Justice Department today issued a supplement to its Feb. 2, 2015 Business Review Letter from the Antitrust Division to the Institute of Electrical and Electronics Engineers, Incorporated (IEEE) (“the 2015 Letter”). The 2015 Letter analyzed proposed revisions to the IEEE’s Patent Policy of that same year pursuant to the department’s Business Review Procedure, 28 C.F.R. § 50.6. The Antitrust Division took this step to address concerns raised publicly by industry, lawmakers, and former department and other federal government officials that the 2015 letter has been misinterpreted, and cited frequently and incorrectly, as an endorsement of the IEEE’s Patent Policy. Additionally, aspects of the 2015 letter had become outdated based on recent jurisprudential and policy developments.
“The Department’s Business Review Procedure provides enforcement transparency to companies and organizations wishing to gain valuable insight into the department’s prospective enforcement views,” said Assistant Attorney General Makan Delrahim. “The 2015 IEEE Letter, however, has proven outdated and we fear that reliance on its analysis, both in the United States and abroad, could actually harm competition and chill innovation. The division concluded this supplement is necessary to provide increased clarity, given recent developments and potential misinterpretations of the division’s enforcement views.”
Under the Department of Justice’s Business Review Procedure, an organization may submit proposed conduct to the Antitrust Division and receive a statement as to the division’s current antitrust enforcement intentions based on the information provided. In addition to providing assurance to the requesting party, the Antitrust Division’s responses often explain the application of complex areas of antitrust law, such as patent pooling. The department, however, reserves the right to challenge the proposed conduct under the antitrust laws if its actual operation proves to be anticompetitive in purpose or effect. The department’s action today does not affect the Business Review Procedure.
The Antitrust Division’s supplemental letter explains that it is meant to align the now outdated analysis in the 2015 letter with current U.S. law and policy, which has evolved in important ways over the last five years in relation to the licensing of standard essential patents, and the governance of standards development organizations. The supplemental letter encourages IEEE to consider the supplementary letter and all applicable facts when assessing whether an update to the IEEE’s Patent Policy is warranted. The supplemental letter is available on Antitrust Division’s website, along with the 2015 letter and IEEE’s original business review request.