Patent’s Inclusion in a Standard Does Not Automatically Convey Market Power, DOJ Reasserts

Since the third quarter of 2025, the second Trump Administration has increasingly fleshed out its policy toward antitrust enforcement in standard essential patent (SEP) disputes. Now, the Department of Justice (DOJ) has doubled down on its posture toward a key threshold issue as first established in an October court filing: On March 25, in remarks delivered at the LeadershIP 2026 conference, Deputy Assistant Attorney General Dina Kallay reiterated that the DOJ’s Antitrust Division believes that there should be no presumption that a patent’s inclusion in a standard gives its owner market power—and that such a determination requires the consideration of additional factors.

Prior Policy Statements under Trump 2.0: Support for SEP Injunctions, Concerns over Standardization Processes

The government’s approach to SEP policy has shifted significantly between administrations over the past several years. In 2019, the first Trump Administration withdrew a 2013 policy statement that focused more on patent owner hold-up (where, as Kallay summarized last year, a “patent holder leverages a technology’s inclusion in a standard to demand supracompetitive royalties”), replacing it with another that argued that injunctions should be available in disputes over fair, reasonable, and nondiscriminatory (FRAND) licensing. However, in 2021, the Biden Administration—in particular, the DOJ, the National Institute of Standards and Technology (NIST), and the USPTO—decided to withdraw the 2019 policy statement without replacing it, shifting to a case-by-case approach to antitrust enforcement for such disputes.

Then, in September 2025, Kallay detailed some of the current administration’s views on antitrust in the SEP context in a speech at a dinner held by antitrust publication Concurrences. In those remarks, Kallay partly endorsed some of the viewpoints and policies from the first Trump term under Assistant Attorney General Makan Delrahim—including his argument that the prior policy focused too much on patent owner hold-up, and that implementer hold-out (not defined by Kalley, but under which as a general matter a potential licensee declines to take a license to a SEP, forcing the patent holder to turn to litigation) poses a greater threat to innovation. However, Kallay also expressed support for the Biden Administration’s shift to a case-by-case enforcement approach.

Kallay additionally detailed the Antitrust Division’s concerns over the “breakdown of the FRAND-assured standards development ecosystem”, highlighting three such areas of concern. The first of those involves standards that are implemented without requiring SEP owners to make a FRAND licensing commitment. The second pertains to so-called “negative” FRAND assurances, where patent owners submit their patents for inclusion in a standard while stating they do not agree to be bound by the applicable standards development organization’s patent policy, which occurred after the Institute of Electrical and Electronics Engineers (IEEE) adopted an intellectual property rights (IPR) policy in 2015 that largely bars the owners of patents declared under that policy from seeking injunctive relief. The third area of concern relates to non-FRAND “propriety standards development consortia policies”, such as industry consortia that agree to offer royalty-free licenses.

Notably, in June 2025, the Antitrust Division and the USPTO cofiled a statement of interest (SOI) in litigation involving that third scenario, in a dispute related to the refusal of one patent owner—Radian Memory Systems LLC—to join an industry consortium requiring that owners grant a royalty-free license. That statement, for which the underlying case against Samsung has since been dismissed, is further significant for endorsing the view that NPEs should be able to win injunctive relief.

The US Department of Justice and USPTO have since reasserted those arguments in another SOI filed in a separate case, this one filed against Samsung by Collision Communications, Inc. As did the one filed in the Radian case, this newer statement urges the court to consider an NPE’s claim to irreparable harm because, among other things, “patents can be difficult to value”. Samsung has responded, among other things warning that an injunction here “would wipe out over a quarter of the U.S. smartphone market based on one patent a non-practicing entity bought from a third party”.

The Antitrust Division and USPTO have also raised similar arguments with respect to SEP disputes before the International Trade Commission (ITC): In Certain Dynamic Random Access Memory (DRAM) Devices, an ITC investigation filed by Netlist against Alphabet (Google) and Samsung, the two agencies asserted that “the general importance of an infringer’s company or technology is not the same as the public interest”. To the contrary, the statement contends that the public interest is served by the issuance of exclusion orders (essentially, injunctions) in Section 337 investigations involving SEPs.

As 2025 came to a close, the USPTO then drew on the principles from the government’s briefs in the Radian and Netlist cases in its December 29 announcement that it was forming a Standard-Essential Patent Working Group (or “SEP Working Group”) to ensure that all patent owners, “regardless of their size or sophistication”, receive fair treatment and have “strong and predictable enforcement” rights for their SEPs. The USPTO stated that the SEP Working Group will have three objectives: to “[r]estor[e] [r]obust [r]emedies” for patent owners; to increase the participation of US companies, particular small-to-medium-sized ones, in the standardization process; and to “[c]reat[e] channels for dialogue with patent holders, implementers, SDOs, and other stakeholders”.

Market Power and SEPs: No Presumption of Market Power; Antitrust Scrutiny Should Not Bar Patent Owners from Access to Courts

Kallay’s March 25 remarks focus primarily on how, in the Antitrust Division’s view, courts should approach a key threshold issue in the antitrust analysis: The question of whether a company (here, a patent owner) accused of an antitrust violation has market power.

Kallay began by outlining the government’s current view on market power and patents more broadly: While stating that “a long time ago” patents were viewed as conveying monopoly power in the antitrust context, Kallay explains that “[m]odern antitrust enforcers and courts . . . reject such a simplistic view”. Rather, Kallay argues that both the DOJ, through its Antitrust-IP Guidelines; and the Supreme Court, through its 2006 decision in Illinois Tool Works v. Independent Ink; reject the presumption that patents convey market power. (Illinois Tool Works more specifically held that where a seller conditions the sale of a patented “tying” product on the purchase of a second “tied” product, market power is not established solely because the tying product is patented.) Under that current view, per Kallay, the existence of market power depends in part on “whether there are actual or potential close substitutes for that patent”, among other factors.

Kallay then pointed to the Antitrust Division’s October 2025 SOI in a Delaware case filed by Disney against InterDigital, Inc. and several subsidiaries, in which the government extended that same principle to the SEP space.

The underlying dispute in that case first hit the courts in February 2025, when InterDigital sued Disney for patent infringement in the Central District of California after the parties failed to reach a license agreement. InterDigital subsequently filed cases against Disney in Brazil, Germany, and before the EU’s Unified Patent Court (UPC). That same May, the “UPC’s Mannheim Local Division granted an anti-anti-suit injunction to InterDigital, to counter Disney’s efforts to obtain an anti-suit injunction in the California litigation” (as summarized in the DOJ’s SOI), while the Brazilian court awarded the plaintiff a preliminary injunction four months later. Disney’s complaint, filed in August 2025, argues in part that InterDigital has unlawfully wielded monopoly power over video streaming codec technology, and that it used that power to seek supra-FRAND licensing rates.

As recounted by Kallay, the government’s SOI “explained that, as is the rule for all patents, there is no presumption of market power simply because a patent has been incorporated into a standard”. Rather, whether the patent owner has market power depends on two factors, the first of which is “whether there are alternatives to the standard”—in which case a patent’s inclusion in the standard at issue would not convey market power. The second considers the patent owner’s “contractual obligations and commitments” made to the relevant standard-setting organization, since a commitment to license the patents on FRAND terms could “protect against any exercise of potential market power that could have been conferred by SEP status”. Since Disney’s complaint points to numerous such obligations and commitments and includes “no allegations regarding potential alternative technologies”, Kallay summarized, “antitrust demands additional analysis”.

To hold otherwise “would be an incorrect application of the antitrust laws that creates an unwarranted assumption of market power”, Kallay underscored—adding that “[i]t may also unduly reduce the incentives for innovators to contribute cutting-edge technology to procompetitive industry standards”.

Here, Kallay added that such an approach is “consistent with the longtime position of the European Commission, whose horizontal cooperation guidelines explain that ‘there is no presumption that holding or exercising [intellectual property rights] essential to a standard equates to the possession or exercise of market power’”—and that the question of market power “can only be assessed on a case by case basis”.

Kallay also reiterated the government’s second key argument from the SOI, in response to alleged harms caused by InterDigital stemming from its litigation against Disney, that a party’s litigation efforts are exempt from antitrust liability under the Noerr-Pennington doctrine, based on the First Amendment right to petition the government for redress of grievances. For this reason—and because “[p]atents are property rights, and the only way to enforce them is through litigation”—Kallay echoed the SOI’s position that “patent holders, including SEP holders, should not face antitrust scrutiny and the possibility of treble damages for seeking redress in the courts”.

Kallay additionally argued that this principle should also extend to litigation before the ITC, pointing to the joint DOJ-USPTO SOI in the Netlist litigation that, as mentioned above, asserted that the public interest would be served by allowing exclusion orders in SEP investigations. Kallay reiterated a similar “redress of grievances” position as raised in that SOI here, also echoing the SOI’s assertion that the public interest analysis should not be a threshold test:

Consistent with the statutory design, the determination of public interest should follow the findings on infringement and validity, not precede them. Undertaking a public interest assessment on the front end, before hearing the case, threatens to make the public interest a threshold determination, creating another procedural hurdle for patent enforcement.

Kallay then concluded by pointing again to Europe, here observing that the Court of Justice of the European Union (CJEU) has also recognized the need to protect patent holder’s rights to “seek redress from the courts”, albeit not as a “complete exception”. Here, Kallay invoked the CJEU’s landmark holding in Huawei v. ZTE as “clarif[ying] that European law ‘provides for a range of legal remedies aimed at ensuring a high level of protection for intellectual-property rights,’ including ‘the right of access to a tribunal’”. The 2015 Huawei decision is well known for providing a series of steps that parties must adhere to during FRAND negotiations to be found compliant with their respective obligations.

For more on these and other recent FRAND developments, including other SEP policy developments in Europe and jurisdictional battles between some of the world’s top FRAND litigation venues, see RPX’s reports on the third and fourth quarters.