ANALYSIS: DOJ’s IP Dispute Policy Aims to Smooth FRAND Friction

The Biden Administration’s Justice Department has moved to jettison a Trump-era policy on the rights of holders of “standard essential patents” (SEPs) that had become a conflict point between the two U.S. antitrust agencies. The proposed replacement policy, announced for public comment Dec. 6, returns to the 2013 guidance from DOJ that provided some protection for manufacturers when SEP licensing disputes get ugly.

At the core of the changing policy is an underlying belief about why negotiations regarding the “Fair, Reasonable And Non-Discriminatory” (FRAND) license terms for a SEP commonly break down, and who should bear the risk when they ...