DOJ economist outlines agency approach to antitrust review of patent acquisitions

The Department of Justice Antitrust Division (DOJ) has been grappling with how to analyze the competitive effects of patent portfolio transactions for some time. It reviewed and ultimately cleared several significant portfolio transfers in early 2012, including Google’s acquisition of Motorola Mobility and the acquisition of Nortel’s patent portfolio by a consortium of technology companies including Microsoft and Research In Motion. DOJ issued a closing statement explaining its rationale for clearing those transactions, but it was focused entirely on the standard essential patents in the acquired portfolios. In a recent speech, chief DOJ economist Fiona Scott-Morton announced an analytical framework that provides more guidance on how DOJ intends to evaluate such transactions in the future. According to Scott-Morton, the strategy and business model of the acquiring entity will have a significant impact on the DOJ’s analysis of the proposed acquisition.

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