Fueling Innovation: Antitrust and Intellectual Property in Support of American Technological Leadership

Remarks as Prepared for Delivery at the Center for Strategic and International Studies (CSIS) LeadershIP 2026

Thank you for the invitation to speak at the Center for Strategic and International Studies (CSIS) LeadershIP 2026 event. It's a pleasure to be here today to discuss the important topic of maintaining America's global leadership in innovation and technology. I've read that the CSIS mission is "guided by a distinct set of values - non-partisanship, independent thought, innovative thinking, cross-disciplinary scholarship, integrity, and professionalism." These values are aligned with that of the Department of Justice's Antitrust Division, whose mission is to promote competition by enforcing the antitrust laws to protect economic freedom and opportunity on behalf of the American people.[1] Competition in a free market provides American consumers with lower prices, better quality, greater choice, efficiencies, and innovation which, in turn, support the prosperity and competitiveness of U.S. industry.

America is the land of innovators and entrepreneurs. As the President has recognized, "Our economy is the greatest in the world because we, more than any other country, incentivize individuals to dream big, take risks, and make the impossible possible."[2] From Thomas Edison's light bulb to Henry Ford's assembly line and the Wright brothers' power of flight, all the way to the Internet and personal computer in the modern era, the United States has led the way in groundbreaking technological transformations.[3] Our country embraces innovation and entrepreneurship, and that commitment has helped make our economy the greatest economy in the world.

Today, we are living through yet another transformative time. New ways to produce goods and services and to do business are being developed every day, and we are in a global race to harness the power of AI and other new technologies to improve our quality of life and propel our economy forward. To preserve American leadership and our competitive edge, the question of how to promote innovation, also known as dynamic competition, has never been more critical.

A robust intellectual property regime plays a big role in promoting innovation and competition. As President Trump proclaimed on World Intellectual Property Day last year, "The future of our great Nation depends on the continued safeguarding of our intellectual property, which fuels economic growth, technological progress, and global competitiveness."[4] Today, I'd like to highlight several workstreams we at the Antitrust Division have worked on to usher in what the President has called "the Golden Age of American Innovation."[5] These matters all involve principles that we, as antitrust enforcers and advocates, believe are key to the sound analysis of dynamic innovation scenarios.

1. Ensuring that Proper Market Power Analysis Applies to Intellectual Property

There is now a well-established recognition that, in the U.S., antitrust laws apply to conduct involving patents as they do to other types of conduct. The 2017 Antitrust-IP Guidelines reaffirmed that the antitrust agencies apply the same analysis to conduct involving intellectual property as to conduct involving other forms of property, while "taking into account the specific characteristics of a particular property right."[6] Antitrust laws are designed to take account of different product and market characteristics and circumstances, and the analysis with respect to IP is not fundamentally different than in other contexts.[7]

Similarly, in the intellectual property context, as in other contexts, U.S. antitrust laws do not provide a basis for challenging "high" prices that are not the result of independent anticompetitive conduct.[8] But there is nuance in exactly how standard antitrust analyses like market power map onto the IP context, and that nuance is extremely important because market power is often a threshold question in antitrust analyses. A long time ago, patents were viewed as not only conferring exclusive rights to the product or processes, but also therefore conferring monopoly power in a relevant market upon their owner.

Modern antitrust enforcers and courts, of course, reject such a simplistic view. The Antitrust-IP Guidelines, dating back to the original 1995 version, clearly set out that the antitrust agencies do not presume that a patent (or copyright or trade secret) confers market power.[9] The U.S. Supreme Court has later endorsed the antitrust agencies' position on this issue.[10] Rather, applying basic antitrust analysis, the existence of market power depends on the assessment of other factors, including whether there are actual or potential close substitutes for that patent. If there are such substitutes, that would constrain market power and any exercise of it.

Recently, the Antitrust Division further clarified this principle in the context of standard essential patents ("SEPs"). A SEP is a patent that protects an invention that has been incorporated into and is essential to the implementation of a collaborative industry standard. In a statement of interest filed in the case Disney v. InterDigital in Delaware district court, the Division 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.[11]

But the analysis does not end there. As the Division's statement of interest outlines, whether a standard essential patent owner has market power depends on an assessment of various factors. First, it depends on whether there are alternatives to the standard. Just as products compete against each other, different standards also compete against each other. If the standard has substitutes, then incorporation into the standard may not confer market power.[12] Second, what are the contractual obligations and commitments that the patent holder may have voluntarily undertaken pursuant to the policies of the standards development organization that created the standard? If the patent holder has pledged that it will license its patents on a reasonable and non-discriminatory ("RAND") or a fair, reasonable, and non-discriminatory ("FRAND") basis, then those commitments could protect against any exercise of potential market power that could have been conferred by SEP status.[13]

In Disney v. InterDigital, there were allegations in the complaint that the patent holder, InterDigital, had undertaken numerous commitments, including promising to license the standard essential patents at stake to implementers of the standard on RAND terms. And there were no allegations regarding potential alternative technologies. Under those circumstances, antitrust demands additional analysis. Establishing market power cannot depend on a presumption based on incorporation into a standard. To rely on such a presumption would be an incorrect application of the antitrust laws that creates an unwarranted assumption of market power. It may also unduly reduce the incentives for innovators to contribute cutting-edge technology to procompetitive industry standards.

Notably, this clarification with respect to analysis of market power conferred by standard essential patents 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. [Rather t]he question of market power can only be assessed on a case by case basis."[14]

1. Protecting the Right to Seek Judicial Redress in Patent Cases

Especially given the often complex and high-stakes issues, another important aspect of an intellectual property regime is to protect parties' right to seek relief from the courts or other adjudicatory bodies when disputes involving intellectual property arise. I'll address both access to courts and access to adjudicatory bodies like the International Trade Commission.

First, as many of you know, there is an antitrust exemption called the Noerr-Pennington doctrine, under which seeking judicial redress is protected from antitrust liability.[15] Drawn from First Amendment freedom of speech principles, the Noerr-Pennington doctrine exempts parties petitioning the government from antitrust liability, even where such activity may be considered anticompetitive. As the Supreme Court has recognized, the doctrine extends to right of access to the courts, which is one aspect of the right to petition the government.[16] Thus, going to court and exercising the right to seek judicial redress cannot serve as the basis for an antitrust claim absent application of a "sham" litigation exception or, in the patent context, an assertion that a patent has been obtained by fraud (which is called a Walker Process claim).

As the Division's statement of interest in Disney v. InterDigital explained, in the IP context, patent holders, including SEP holders, should not face antitrust scrutiny and the possibility of treble damages for seeking redress in the courts.[17] Patents are property rights, and the only way to enforce them is through litigation. Enforcing those rights seeking relief for patent infringement in court is a generally protected exercise that cannot give rise to antitrust liability. Otherwise, potential antitrust liability could reduce innovators' incentives to invest in innovation and participate in procompetitive standards-development activities, as well as deter protected petitioning activity. Striking the right balance requires protecting the ability of patent holders to seek relief without risking antitrust liability.

Second, protecting the ability to seek redress for patent infringement is not limited to the courts but also extends to adjudicatory bodies, like the U.S. International Trade Commission ("ITC"). The ITC is the federal agency that adjudicates claims under Section 337 of the Tariff Act of 1930, which makes it illegal to import articles that infringe valid U.S. patents into the United States and makes orders excluding such articles the statutory default when a violation is found.[18] If the ITC finds a violation, it "shall" issue an exclusion order barring the importation of infringing articles, except where extraordinary circumstances - public health and welfare, competitive conditions, and domestic production - justify altering the relief.[19] This framework is vital as a way for patent holders to protect their intellectual property against foreign imitations and be able to block the flow of infringing products into the United States.

In the fall, the Antitrust Division, in partnership with the U.S. Patent and Trademark Office (USPTO), filed a joint comment on the public interest in an ITC proceeding filed by Netlist against Samsung.[20]

The joint comment explains that the public interest is not served by transforming the public interest factors in the statute into barriers to enforcement. Consistent with the statutory design, the determination of public interest should follow the findings on infringement and validity, not precede them.[21] 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. As the joint comment explains, the infringement claim is the antecedent question.[22] To allow the public interest aspect to serve as a gatekeeper function would contravene Congress's intent and encroach on the First Amendment right to petition the government and seek redress.

To protect American innovation and make sure that U.S. patent holders are able to seek relief for infringing products coming from abroad, we must maintain a system of robust enforcement of valid patent rights. That begins with protecting access to avenues through which patent holders can seek redress.

Finally, I note that protecting patent holders rights to seek redress in courts is similarly recognized on the other side of the Atlantic, where the European Court of Justice has clarified 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,"^[23] although that recognition is nor recognized as a complete exemption there.

To conclude, the Division's recent work in this area clarified that analysis of any market power conferred by patents, including standards essential patents, should always be undertaken on a case-by-case basis. Furthermore, we've clarified that patent holders who seek redress for patent infringement are generally exempt from antitrust liability, except in cases of sham litigation. We believe these clarifications are important for supporting American leadership in cutting-edge technologies. The Antitrust Division plans to stay vigilant about these issues, and we will continue to work closely with our colleagues at the U.S. Patent and Trademark Office to advance our shared goals of promoting a strong and effective patent system that is key for competition, consumers, businesses, and our economy.