FSA commends US DoJ confirming its policy on use of injunctions in SEP disputes

The Fair Standards Alliance (FSA) commends the US Department of Justice’s (DoJ) decision to restore to its original state the 2015 business review letter (BRL) to the Institute of Electrical and Electronics Engineers (IEEE).

On 14 April 2021, the DoJ’s Antitrust Division said in a statement that it is “restoring the 2015 [BRL] to its original state by moving the 2020 competition advocacy letter to the competition advocacy portion of [its] website. This action is a return to previous practice that is consistent with existing Department regulations.”

The FSA is pleased that the DoJ has acknowledged that the unprecedented and controversial supplement letter issued in September 2020 is “competition advocacy” rather than the DoJ’s current position regarding the 2015 BRL.

In 2015, the DoJ issued a BRL to the IEEE advising that it did not intend to challenge the IEEE’s proposed update to its patent policy. On 10 September 2020, the DoJ took what it characterised as the “extraordinary step” of issuing a supplement to that 2015 business review letter (BRL) to the IEEE. As the FSA stated at the time, the DoJ’s 2020 supplement letter was inappropriately issued.

We welcome the DoJ’s decision to reclassify the 2020 supplement letter and restore the DoJ’s balanced review of the IEEE’s (then-proposed) 2015 updates clarifying the IEEE’s fair, reasonable, and non-discriminatory (FRAND) licensing policy for standard essential patents.