Emboldened by a Ninth Circuit panel's decision to overturn a district court's FTC v. Qualcomm antitrust ruling, Antitrust Assistant Attorney General Makan Delrahim--whom I call "Macomm" because he's a former and presumably future Qualcomm lawyer who has been unabatedly promoting Qualcomm's SEP enforcement agenda in his current office--updated (DOJ press release; supplemental letter (PDF)) the Justice Department's 2015 Business Review Letter to the Institute of Electrical and Electronics Engineers (IEEE) with respect to the DOJ's take on the IEEE's patent policy.
For ten years this blog has tried to provide original content, so rather than provide duplicative commentary, let me just point you to Professor Thomas Cotter's analysis (note the four items he specifically criticizes, "all of which are (in [Professor Cotter's] view) much more of an overstatement than the overstatement [AAAG Delrahim] claims to be correcting") and a 2018 paper by Professor Jorge Contreras on the way Mr. Delrahim changed the DOJ's focus in this context.
I'd just like to add a few thoughts and my opinion to the last two sentences of Professor Cotter's Comparative Patent Remedies blog post
"I would have thought that someone who believes in free markets would conclude that, if a private entity [here, the IEEE] adopts a policy that turns out badly [here, the IEEE patent policy that AAAG Delrahim claims unfairly disadvantages patent holders], that entity should have to suffer the consequences [here, the effects of discouraging innvotators from contributing to industry standards], rather than needing the guiding hand of the Antitrust Division to save it from itself."
The above sentence--to which I added various explanations as I didn't quote the passages leading to it--is a diplomatic way of telling Mr. Delrahim that he--a Republican president's appointee--isn't being a good Republican in the IEEE context...
Unfortunately, conservative talk radio hosts wouldn't ever discuss a topic as esoteric as SEP enforcement. At least a few academics and bloggers do.
"Or could this be a not-to[o]-subtle hint that, if Donald Trump wins re-election, IEEE could find itself in the agency's cross-hairs?"
I'll answer this question, which looks like a rhetorical one anyway: YES, that's what it is all about, in two ways:
When reading the supplemental letter, I noticed multiple suggestions that the IEEE revise its patent policy to the effect of giving SEP holders more leverage in an enforcement situation and, as a result, in negotiations.
I doubt that the IEEE will do so in the coming months. We're not even two months away from Election Day, after which Mr. Delrahim's days in office may be numbered.
Mr. Delrahim presumably doesn't even expect its letter to persuade the IEEE. He just wants to be able to say, at the time of taking enforcement action, that he gave the IEEE one last chance to avoid an investigation. PR and politics are particularly important when doing something very controversial--and even more so, when doing something highly controversial against an extremely well-respected organization. Mr. Delrahim knows that when he announces the investigation he's preparing for, many of America's most innovative companies will side with the IEEE.
The only outcome of an IEEE investigation led by Mr. Delrahim would be a holding that the IEEE's patent policy is "anticompetitive" in the sense of limiting SEP holders' ability to aggressively enforce their rights. The DOJ would have to sue the IEEE, and the previous Business Review Letter would have complicated any litigation. In court, the DOJ could have made the same argument as in its supplemental letter: the IEEE allegedly misrepresented the 2015 BRL as an "endorsement" of its patent policy. Regardless of whether an agency's decision not to take action against something is accurately called an "endorsement" (a question on which even reasonable people could fail to agree), the retraction of the 2015 letter is simply a necessary step with a view to what Mr. Delrahim undoubtedly has in mind.
If President Trump does it again, Mr. Delrahim will likely stay on, and then the IEEE knows what's going to happen, but fortunately the courts will decide.
In the other scenario, Mr. Delrahim could theoretically do what the outgoing Democratic majority of the Federal Trade Commission did in the last days of the Obama Administration by filing an action against Qualcomm. However, the difference is that an FTC action may continue (as one could see in the Qualcomm case) even after a presidential transition, while the DOJ would be 100% under the control of the new party in power. That's why such an investigation or litigation might be short-lived.
The updated BRL is disconcerting at any rate.
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