Vishal Mehta spoke to World IP Review for an article about how President Joe Biden's changes to M&A rules and the emergence of a stringent antitrust bill could herald tough new antitrust measures with significant ramifications for intellectual property.
According to Vishal, the U.S. Department of Justice held that patent holdup – when a patent holder makes an intentionally false promise to license technology on fair, reasonable and non-discriminatory (FRAND) terms and then breaches that promise – should not be viewed as an antitrust issue.
“The agency's ‘New Madison' approach recast SEP [standard-essential patent] holdup as fundamentally a contract, rather than antitrust, problem,” Vishal said. “It emphasized the risk of hold-out by implementers, reinforced the right to exclude inherent to patent rights, and aligned this with the right to unilaterally refuse to deal under the antitrust laws.”
He added: “These principles represented a significant policy shift in favor of patentees.”
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Originally Published by 09 March 2021
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