A gaggle of 25 specialists in mental property regulation despatched a letter to Assistant Legal professional Normal (AAG) Jonathan Kanter at the moment in help of a enterprise evaluate letter that the group mentioned, “represented a legally sound and evidence-based method in making use of antitrust regulation to progressive business establishments.”

The letter can be a response to an earlier letter despatched to Kanter on October 17, 2022, by 28 former authorities enforcement officers, professors, and public curiosity advocates that urged the AAG to rethink the enterprise evaluate letter.

The Avanci enterprise evaluate letter was printed by the Antitrust Division of the U.S. Division of Justice on July 28, 2020. Within the letter, the DOJ mentioned that Avanci’s licensing platform, which plans to license patent claims declared important to implement 5G in vehicles, didn’t hurt competitors within the business. Enterprise evaluate letters symbolize steering by the DOJ to tell companies greatest coordinate their practices to make sure they don’t violate antitrust legal guidelines.

The authors of the November 30 letter argue that the October 17 letter “perpetuates long-standing misunderstandings by some lecturers, coverage activists, and corporations, who proceed to say that one-sided ‘patent holdup’ is endemic in high-tech industries.”

The October 17 letter mentioned the DOJ’s determination created incentives for the patent pool and “patent trolls… to behave in lockstep to the detriment of vehicle producers, part suppliers, and American shoppers.”

November 30 Letter

Twenty-five former judges, authorities officers, authorized lecturers, and economists signed the November 30 letter in help of the DOJ’s 2020 enterprise evaluate letter.

One of many major motivations for the letter was to answer the October 17 letter despatched to Kanter. The authors of the November 30 letter argued the October 17 letter invoked the “patent troll epithet to disparage just about all entities that have interaction in patent licensing and associated monetization transactions.”

They added that the “patent troll” declare will not be primarily based on empirical proof and the authors of the October 17 letter mischaracterized a number of courtroom choices, suggesting that the outcomes of those instances had been the results of “holdup techniques by so-called ‘patent trolls,’” when in actual fact, “[t]he actuality is exactly the other.”

As an alternative, mentioned the November 30 letter, the courts within the instances used as examples within the October 17 letter issued injunctive reduction as a result of implementers had been discovered to be unwilling licensees partaking in holdout techniques, “wrongly delaying negotiations or outright refusing to enter into licenses that will authorize their previous and persevering with use of the SEP proprietor’s legitimate patents.”

The November 30 signatories additionally took concern with the October 17 letter’s use of “decades-old theories and fashions that falsely predicted stymied innovation, greater costs, and client hurt within the cell telecommunications.”

The theories in query are “patent holdup” and “royalty stacking,” specifically. The November 30 letter cites analysis “that casts nice doubt on the factual reliability of those theories.”

Reasonably than being held again by excessive royalty charges, the authors of the November 30 letter cite analysis that “constantly estimated that producers have paid an combination royalty within the single digits.”

The November 30 letter as an alternative helps the precept of “good-faith negotiations of licensing phrases primarily based on truthful, affordable, and non-discriminatory (FRAND) royalty charges,” which the authors argue helps a “thriving ecosystem in wi-fi applied sciences.”

The letter was signed by plenty of well-known IP specialists, advocates, judges, former authorities officers, economists, and regulation professors, together with Alden Abbott, Former Normal Counsel on the U.S. Federal Commerce Fee; Paul Michel, Chief Decide (Retired) of the US Courtroom of Appeals for the Federal Circuit (CAFC); Kathleen M. O’Malley, Circuit Decide (Retired) on the CAFC; Ronald A. Cass, Former Vice-Chairman and Commissioner at the US Worldwide Commerce Fee; Douglas H. Ginsburg, Senior Circuit Decide and Former Chief Decide on the US Courtroom of Appeals for the District of Columbia Circuit; Damon C. Matteo, Former Chairperson of the Patent Public Advisory Committee at the US Patent & Trademark Workplace; Richard A. Epstein, Professor of Legislation at New York College College of Legislation; Kristen Osenga, Affiliate Dean of Educational Affairs & Professor of Legislation on the College of Richmond; Stephen Haber, Professor at Stanford College; and David J. Teece, Professor of Enterprise Administration & Chair in World Enterprise on the College of California at Berkeley, amongst others.

October 17 Letter

The 28 signatories to the October 17 letter mentioned that the DOJ’s 2020 letter must be reconsidered as a result of it “threatens much more foreboding future harms as 5G is extra totally deployed.”

They argued the DOJ letter undermines a bipartisan authorized and financial consensus that abusive SEP practices can “hurt innovation, competitors, and shoppers.”

Moreover, the signatories claimed the DOJ relied on “questionable positions,” together with a failure to contemplate how Avanci’s refusal to license suppliers violates FRAND phrases.

Lastly, the October 17 letter cited real-world occasions as corroboration for his or her considerations in regards to the DOJ’s letter. They argued that Avanci’s current 2G/3G/4G patent pool “has already resulted in hurt to competitors and shoppers.”

The authors cited a number of lawsuits filed by Avanci members in the US, Germany, and Japan towards automotive producers. They argued the DOJ’s assumptions have “drive[d] corporations to take their merchandise off the market—and danger going out of enterprise—lengthy earlier than any invalidity (or infringement) determinations are made.”

The October 17 letter was signed by representatives of plenty of public curiosity and vocally anti-patent organizations, together with Alex H. Moss of the Public Curiosity Patent Legislation Institute; Professor Michael A. Provider of Rutgers Legislation College; John Bergmayer of Public Data; Charles Duan, Senior Coverage Fellow on the Program on Data Justice and Mental Property & American College Washington School of Legislation; Mitch Stoltz of the Digital Frontier Basis.

The place’s the Proof?

Adam Mossoff, Professor of Legislation at George Mason College, who co-authored at the moment’s letter with Jonathan Barnett, Professor of Legislation on the College of Southern California, advised IPWatchdog that the assertions made within the October 17 letter in regards to the harms to competitors which have already materialized on account of the Avanci pool are obviously false and unsupported by financial proof. Mossoff defined:

“The October 17 letter makes bald-faced assertions – backed by quotes from blogs and op-eds calling SEP homeowners ‘patent trolls’ – that buyers and competitors have been harmed from allegedly supra-optimal royalties charged for the brand new cell telecommunications providers and capabilities which were added to our linked vehicles. The letter cites no financial proof or research to help these arguments, as a result of it can’t. There aren’t any. These should not evidence-backed arguments, simply as there aren’t any empirical or financial research confirming ‘patent holdup’ or ‘royalty stacking’ theories. The October 17 letter merely restates once more these similar decades-old theories in a brand new business context – apparently partaking within the outdated propaganda tactic that dint of repetition will make one thing true.”

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