Deputy Assistant Attorney General Dina Kallay delivered a keynote address at the Concurrences Dinner in New York, discussing the relationship between antitrust law and intellectual property (IP) with a focus on innovation and standards development. The event took place alongside Fordham’s Annual Conference on International Antitrust Law and Policy.
Kallay highlighted that the Antitrust Division is prioritizing policies that promote innovation, referencing President Trump’s recent statements about the importance of scientific progress and technological advancement for the U.S. economy. She noted that this week was marked as “Innovation Week” at the Antitrust Division, featuring several speeches by senior officials addressing innovation in antitrust enforcement.
In her remarks, Kallay explained that both antitrust and IP laws aim to foster innovation, describing them as “aligned and complementary.” She emphasized the role of collaborative industry standards in promoting interoperability, safety, and technological progress. These standards often rely on F/RAND (Fair, Reasonable, and Non-Discriminatory) commitments from patent holders to ensure access to essential technologies under reasonable terms.
Kallay addressed concerns when such F/RAND assurances are missing or negative within standards development organizations (SDOs). She stated: “Standards that are rife with missing or negative F/RAND declarations create a concerning opportunity for exclusion because access to the standard, let alone on reasonable competitive terms and conditions, is not assured.” According to Kallay, this can lead to implementers being locked into using technology without guaranteed access under fair terms or facing exclusion from markets.
She also discussed proprietary consortia that require mandatory royalty-free cross-licensing among members. While these arrangements can have procompetitive aspects, Kallay warned: “In the context of a proprietary consortium that is made up of dominant implementers that collectively possess market power, such arrangements can be competitively harmful.” She added that setting royalties at zero could reduce incentives for companies to invest in research and development.
Kallay referenced a recent case involving Radian Memory Systems and Samsung Electronics as an example of potential anticompetitive harm in proprietary standards development. In this case, Radian alleged its patented technology was incorporated into a consortium’s standard without proper licensing after it refused to join due to mandatory royalty-free policies. The Department of Justice (DOJ) and U.S. Patent and Trademark Office filed a statement of interest highlighting risks when large firms dominate standards processes.
The DOJ has indicated it will continue monitoring issues at the intersection of antitrust law and IP rights in standards development. Kallay concluded: “Competition and innovation drive the U.S. economy and greatly benefit American consumers — it is our mission to ensure that they are alive and well.”
