The Assistant Attorney General of the United States for the Antitrust Division, Makan Delrahim, recently announced a significant policy shift in the DOJ’s view of potential antitrust concerns with respect to standard-essential patents and FRAND commitments. AAG Delrahim expressed concern that “courts and enforcers have overly indulged theories of patent hold-up as a supposed competition problem,” while noting that the models they have cited in support are in fact “devoid of economic or empirical evidence that hold-up is a real phenomenon, much less one that harms competition.” Throughout the speech, AAG Delrahim extensively cited and quoted to an unpublished law review article by Richard A. Epstein & Kayvan B. Noroozi, Why Incentives for ‘Patent Holdout’ Threaten To Dismantle FRAND, and Why it Matters, which has called on American courts and policymakers to reconsider the anti-patent policies of the past decade. 32 Berkeley Tech. L. J. (forthcoming 2018) (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2913105).
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