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DoJ antitrust head: ‘my resolve on SEP rights is even stronger’

Makan Delrahim, a man both revered and loathed for his policies on antitrust law and patents, reflects on his tenure as he prepares to depart – probably for the private sector

The US Department of Justice’s head of antitrust told Managing IP last week that he was planning on leaving his role at the end of Donald Trump’s first term, whether the president wins or loses the election on November 3.

Makan Delrahim, who was appointed as assistant attorney general in September 2017, added that he hopes the division will stay on the track he has laid out on the appropriate calibration of antitrust treatment and patents, but that 2021 is an appropriate time for him to go.

“You typically come in for a period of time, and these are gruelling jobs,” he says. “But I have been very fortunate to have been able to do it to the fullest extent that I can and wanted to.”

He adds that he doesn’t know what he will do once he leaves the DoJ, but that he will probably go back to the private sector and continue to advance his work in the public sphere. Delrahim was formerly a partner at Brownstein Hyatt Farber Schreck in Los Angeles and an adjunct professor at Pepperdine Law School in Malibu.

“I'm hoping to get a little break first, but that all depends on COVID and how it affects travel plans. I'll take some time off to regroup, though. We've been so busy that I haven't given it a whole lot of thought.”

Delrahim say that it is of course too early to speculate on who might take his position, and that this outcome would very much depend on the results of the election. But he adds that whoever wins the election, regardless of party politics, will have a great pool of candidates to choose from.

“My hope is they will find someone who is as energetic about antitrust enforcement and as humble about the powers that these offices give you,” he says. “It’s important to keep an eye towards what environment produces the best result as far as dynamic competition is concerned.

“There are a lot of fantastic lawyers out there in the government, in private practice and in academia who could be great leaders of this division.”

He adds that he is particularly proud to have made institutional changes and policy innovations during his time as assistant attorney general – something that probably hasn’t been done since Robert Jackson (one of Delrahim’s legal heroes) was at the department 80 years ago.

During his three-year tenure, Delrahim has made a name for himself among standard essential patent (SEP) stakeholders with his New Madison approach, which sets out that antitrust law should not be used to police commitments that patent holders unilaterally make to standard-setting organisations.

In this approach, Delrahim moved the antitrust division away from the ideology of the Federal Trade Commission, and insisted that patent owners should be able to enforce their rights to refuse to license their technology and to sue infringers.

He has been revered by some SEP owners for these beliefs, and despised by some standards implementers for them.

A stronger resolve

But critics haven’t shaken Delrahim’s resolve – in fact, quite the opposite. He tells Managing IP that his philosophy hasn't changed since he started at the DoJ, and his belief that IP creates dynamic competition has become even stronger.

“We have a right and a duty to properly enforce antitrust laws with humility so we don't take away the incentives to innovate,” he says. “My views have only got stronger that there needs to be a proper balance between antitrust and patents, and accordingly reflects the views expressed in the New Madison framework.”

In response to criticism that the antitrust division has overstepped its role by communicating its view on patent antitrust law in numerous amicus briefs, including in FTC v Qualcomm, Delrahim says these people are biased because they’re on the losing side.

“They would only say that if they were on the losing side of the legal argument,” he says. “I don't think a single person who is on the right side of the position we put forward has said that; our track record has been pretty darn good.

“The most important thing is whether the judges and the courts find what we do to be helpful, and, by and large, I would say all of them have found it helpful to their analysis.”

He points out that the US courts, including those at district and appellate level, have largely followed the DoJ’s views on antitrust law and SEPs. Furthermore, he says, other courts around the world, such as those in Germany, are taking a similar approach in their legal findings.

What he’s proud of

Delrahim tells Managing IP that he is very proud of the numerous achievements that he and his team have made at the DoJ.

On the IP front, he says, he is pleased that he has been able to advance the New Madison approach through thought leadership and the amicus briefs programme that his division created. As part of that, the DoJ has filed around 30 amicus briefs in private cases in district courts and courts of appeal.

“We really moved the ball forward to show how antitrust laws should be interpreted in court cases,” he says. “It's been tiring and I couldn't have done it without the team we have at the division.

“We have seen a lot of flowers bloom and a whole bunch of seeds have been sown, so we'll see what flowers next.”

He says he is also proud of the business review letters that his department has issued, including those related to the Avanci 5G patent pool, and the updated letter on IPR policy at the standards-setting organisation IEEE.

Delrahim has been a notable figure in the realm of antitrust and SEPs over the past three years. He has been a champion of patent rights and has been a key influence in turning the antitrust tide in favour of SEP owners.

We suspect that all SEP stakeholders would want to throw him a leaving party – but some wouldn’t want to invite him.

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