Policy Derailed: Can U.S. Antitrust Policy Toward Standard Essential Patents Get Back on Track by Jonathan Rubin

Jonathan Rubin on Antitrust Policy and SEPs

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The Author

Jonathan Rubin

Jonathan RubinMoginRubin LLP

Jonathan Rubin (jrubin@moginrubin.com) is Co-Founder and Partner of MoginRubin LLP, a boutique antitrust, mergers and acquisitions, and class action law firm. Since 2001, he has focused his legal practice exclusively on antitrust and competition law and policy. As a litigator he has led trial teams in major antitrust cases in courts throughout the country.

Rubin is a member of the Editorial Board of Advisors for the Journal of Emerging
Issues in Litigation.

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Policy Derailed:
Can U.S. Antitrust Policy Toward Standard Essential Patents Get Back on Track?

“The failure to appropriately adjust the patent system to accommodate the competitive circumstances created when patents are incorporated into standards undermines the purposes of the standard-setting enterprise and impairs the utility and proliferation of standardized technologies. Without a course correction among the judiciary, the United States risks finding itself as a less desirable jurisdiction for pro-growth and pro-competitive patenting and standard-setting activities.”

Abstract: A consensus at the intersection of patent and anti-trust law was achieved after a series of decisions finding that in some circumstances owners of standard essential patents (SEPs) have an antitrust duty to deal with willing licensees. Beginning in 2017, however, the Department of Justice derailed U.S. policy by undermining the role and usefulness of antitrust for policing abuses of the standard setting process. This article traces the emergence of the consensus, its abrogation by the DOJ, and the resulting effects and prospects for the future.

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