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Federal Agencies Issue New Draft Policy Statement Regarding Standard Essential Patent Licensing and Remedies, DOJ Seeks Public Comments

On December 6, 2021, the U.S. Department of Justice (“DOJ”) announced a request for public comments on a new “Draft Policy Statement on Licensing Negotiations and Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments” (“Draft Statement”). The Draft Statement is a joint policy statement of the DOJ Antitrust Division, U.S. Patent and Trademark Office (“USPTO”), and National Institute of Standards and Technology (“NIST”), issued in response to President Biden’s July 9, 2021 Executive Order on Promoting Competition in the American Economy. Therein, the President encouraged the Attorney General and the Secretary of Commerce to consider whether to revise the joint DOJ-USPTO-NIST 2019 “Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments” (“2019 Statement”), which, in turn, had replaced a withdrawn 2013 DOJ-USPTO joint policy statement by the same title (“2013 Statement”). All three statements address whether and under what circumstances the owners of standard essential patents (“SEPs”) who agree to license essential technology on fair, reasonable, and non-discriminatory (“FRAND”) terms should be entitled to injunctive relief. The Draft Statement signals a return to the general policy of the 2013 Statement, leaning against the availability of injunctive relief where certain implementers—so called “willing licensees”—agree to take licenses on FRAND terms. The Draft Statement does, however, set out various circumstances in which an implementer who is unwilling to take such a license could face injunctive remedies (or the possibility of enhanced damages for willful infringement).

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FTC Announces 2022 Revised Jurisdictional and Filing Fee Thresholds

Practices: Antitrust

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The Federal Trade Commission has announced revised jurisdictional and filing fee thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“the Act”). The new thresholds under the Act represent an approximately 10% increase from last year. The revised thresholds were published in the Federal Register on January 24, 2022.

Transactions closing on or after February 23 will be subject to the following revised thresholds:

  • Size-of-Transaction Test: The $50 million (as adjusted) threshold used in the size-of-transaction test will increase from $92 million to $101 million.
  • Size-of-Persons Test: The $10 million (as adjusted) and $100 million (as adjusted) sales and assets thresholds used in the size-of-persons test will increase from $18.4 million to $20.2 million and from $184 million to $202 million, respectively. The $200 million (as adjusted) threshold, below which the size-of-persons test applies, will increase from $368 million to $403.9 million.
  • Filing Fees: The filing fees under the Act are not revised under these changes, but the filing thresholds, based upon the value of assets or voting securities, which trigger each fee, will be revised as follows:
     

    Value of Transaction

    Filing Fee

    In excess of $101 million but less than $202 million
    (previously $92 million but less than $184 million)

    $45,000

    $202 million or greater but less than $1.0098 billion
    (previously $184 million but less than $919.9 million)

    $125,000

    $1.0098 billion or more
    (previously $919.9 million or more)

    $280,000

Other value limitations contained in the HSR coverage and exemption rules have also been adjusted. The FTC has increased the maximum civil penalties for noncompliance with the HSR Act to $46,517 (previously $43,792) for each day during which a person is in violation of the Act.

The revised jurisdictional thresholds will remain in effect until the next adjustment issued by the FTC, which is expected in the first quarter of 2023.

For additional information regarding HSR jurisdictional thresholds and reporting requirements, please feel free to contact any member of Ropes & Gray’s antitrust practice group.

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