4 Ways Kanter Should Clean Up DOJ Antitrust Holdups

Abstract

At long last, the Biden Administration has a permanent head of the Antitrust Division. Jonathan Kanter has much work to do. One easy place to begin? Cleaning up the “holdup” mess left by his predecessor, Makan Delrahim.

Delrahim entered office in 2017 determined to shake things up. He had strong views on how antitrust should consider patent-related issues in the high-technology industry. And he foisted those views across every corner of antitrust policy.

These positions stood outside a longstanding bipartisan consensus on these issues. It is now time to clean up the mess Delrahim left behind. To do this, Kanter should take four actions.

First, he should articulate, in speeches and elsewhere, a more balanced and supported approach to standard setting organizations that recognizes the potential occurrence of patent holdup.

Second, Kanter should reinstate the 2013 Statement issued by the U.S. Patent and Trademark Office (PTO) and Antitrust Division, from which Delrahim withdrew.

Third, he should revisit business review letters issued by Delrahim that undermined the bipartisan consensus on patent holdup such as those involving the Institute of Electrical and Electronics Engineers (IEEE) and the Avanci patent pool.

Fourth, Kanter should withdraw amicus briefs in the four ongoing cases in which Delrahim intervened, seeking to impose his out-of-the-mainstream views: Lenovo v. Interdigital, Intel v. Fortress, Continental v. Avanci, and Lenovo v. IPCom.

There is a real mess in the holdup aisle at DOJ. It is time for Kanter to clean up the mess, bringing the U.S. back in line with history, common sense, and antitrust law.

Keywords: standards, antitrust, holdup, patents

JEL Classification: K21, L40, L41, L63, O31, O34