Stutz Talks Antitrust, SEPs, and FRAND with IP Watchdog

IP Watchdog asked AAI’s Randy Stutz to share his thoughts on the panel he moderated at UIC John Marshall’s 64th Annual Intellectual Property Conference on November 13, 2020.  Stutz wrote:

“I take my hat off to Daryl Lim and UIC John Marshall for hosting an exceptionally good conference in the midst of a pandemic! One takeaway is that we may be approaching an inflection point in the United States on attitudes toward antitrust theories premised on FRAND breaches by SEP owners. When confronted with competition law disputes implicating intellectual property, the Trump administration’s Antitrust Division has gone out of its way to prioritize IP policy, whether by voluntarily amending a five-year-old IEEE business review letter to downplay hold-up concerns or inserting itself in the Ninth Circuit’s Qualcomm case to steer litigants toward patent and contract remedies and away from antitrust remedies.  Yet many are not convinced this approach is correct or wise, and other U.S. agencies and European regulators and courts continue to see a meaningful role for antitrust law when SEP owners undertake dubious licensing practices. As global litigation plays out over the proper scope of FRAND commitments, the appropriate FRAND royalty base, available remedies for SEP infringement, and the jurisdictional reach of rate-setting decisions, it remains to be seen whether U.S. regulators will follow the path charted by the Trump administration or instead coalesce around a more balanced approach.”

Thoughts and takeaways from other conference participants, along with an analysis of keynote remarks by the former Chief Judge of the U.S. Court of Appeals for the Federal Circuit, Paul Michel, are available on the IP Watchdog website.

AAI was pleased to be an Institutional Partner of UIC John Marshall for this year’s conference.