On June 4, 2018, legal news site Law360.com published an analysis of the DOJ’s recent policy shift as to the application of antitrust scrutiny to owners of declared standard-essential patents subject to FRAND commitments.
The Law360 piece extensively quoted Kayvan Noroozi and Prof. Richard A. Epstein with respect to their law review article, Why Incentives for “Patent Holdout” Threaten to Dismantle FRAND, and Why It Matters.
The Epstein & Noroozi article created significant policy impact even prior to its publication in the Berkeley Technology Law Journal. In a prepared speech delivered in March 2018, Assistant Attorney General Makan Delrahim—head of the DOJ’s antitrust division—cited extensively to Epstein & Noroozi in announcing that U.S. policymakers and courts have given far too much attention to the unsubstantiated problem of “patent hold up” while giving far too little heed to the countervailing problem of “patent hold out.”
Among other points, Mr. Delrahim cited to Epstein & Noroozi for the observation that the longstanding hostility U.S. policymakers and courts have shown toward injunctions in the FRAND context has been misguided, and “can cause great harm to consumers.” See The “New Madison” Approach to Antitrust and Intellectual Property Law, at 15 & n. 54.
Speaking to Law360, commentators described the DOJ’s policy shift as “radical” and “abrupt”—a testament to the influence of a series of recent scholarship, including by Epstein and Noroozi, which has exposed the fundamental errors with the longstanding preference American courts and policy makers have given to implementers over innovators.