Competition Advocacy Update 2013

Division Update Spring 2013

The Division has an important competition advocacy mission—it helps Federal and state government policymakers, courts, international enforcers, the antitrust bar, the business community, and the general public better appreciate the ways in which competition leads to healthy markets and protects consumers. It also explains why certain types of conduct raise competition concerns. The Division pursues this mission through congressional testimony, filing comments and offering counsel to Federal and state agencies, engaging in workshops and public speaking, filing amicus briefs, and working with international competition agencies and non-U.S. enforcers. In the past year, the Division has undertaken advocacy in several sectors—such as intellectual property, health care, agriculture, telecommunications, and energy—that are crucial to consumers and where competition policy plays a particularly important role.

Intellectual property is a key area for competition policy. Over the past year, the Division has focused attention on the appropriateness of injunctive relief in patent-infringement matters where the patent holder has committed to a standards body to license the patent on fair, reasonable, and nondiscriminatory terms (F/RAND). Last summer, Acting Assistant Attorney General Joseph Wayland testified to the Senate Judiciary Committee on this issue, among others. In January, the Division joined with the U.S. Patent and Trademark Office (PTO) to issue a Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments that included recommendations to the U.S. International Trade Commission. The statement focused on circumstances where an exclusion order may not be appropriate, concluding that “the public interest may preclude the issuance of an exclusion order in cases where the infringer is acting within the scope of the patent holder’s F/RAND commitment and is able, and has not refused, to license on F/RAND terms.”

We partner with the Federal Trade Commission (FTC) on many important intellectual property policy issues. In February, the Division and the FTC submitted comments supporting the PTO’s proposed regulations requiring periodic and timely recording of a patent’s real party in interest, which will increase transparency and help to improve the efficiency of high-technology marketplaces. In December 2012, the Division and the FTC hosted a public workshop on patent-assertion entity (PAE) activities. The workshop brought together outside attorneys, economists, and industry representatives to address the competition implications of PAEs. We engage as well with the private bar, industry members, and others on important intellectual property issues, including how to design patent polices for standards bodies that engender competition and innovation.

The Division also has worked with public and private entities to promote competition in the critical health care sector. For example, the Division has cooperated closely with the FTC, U.S. Department of Health and Human Services (HHS), and other Federal agencies to ensure that competition principles will help guide the implementation of health care reform. As part of this ongoing effort, the Division is working with the FTC and HHS to ensure that the creation of Accountable Care Organizations and other innovative health care delivery systems does not result in price fixing or anticompetitive consolidation among providers. Additionally, the Division has reached out to Federal and state regulators responsible for establishing health-insurance exchanges in order to learn how the exchanges will affect marketplaces and to help ensure that the exchanges harness the forces of competition for the benefit of consumers. And, in September 2012, the Division hosted a public workshop on most-favored-nation clauses (MFNs), which included specific discussion of the use of MFNs in the health care sector.

The Department of Justice also recently joined with the FTC on two Supreme Court briefs in cases involving health care: Federal Trade Commission v. Actavis, Inc., the pay-for-delay case argued before the Supreme Court on March 25, 2013, and Federal Trade Commission v. Phoebe Putney Health System, Inc. Phoebe Putney addressed the scope of the “state action doctrine” in providing federal antitrust immunity to certain conduct that the defendants argued was authorized under state law. The brief argued, and the Supreme Court ultimately agreed, that Georgia’s Hospital Authorities Law does not clearly articulate a state policy to displace competition in the provision of hospital services and that therefore the state action doctrine does not shield from antitrust scrutiny a hospital acquisition involving a state Hospital Authority. This important decision will have an impact beyond the health care sector.

Energy is another sector where the Division advocates on behalf of competition principles. In 2013, the Division filed comments with the Federal Energy Regulatory Commission (FERC) regarding possible changes to the FERC’s regulations under the natural gas market transparency provisions of the Natural Gas Act. The Division’s comments focused on the potential competitive effects of the public dissemination of certain information regarding natural gas transactions and urged the FERC to consider the enhanced risks of coordination inherent in the release of detailed, transaction-specific information.

The Division also works with international competition agencies, like the Organisation for Economic Co-Operation and Development and the International Competition Network, as well as with non-U.S. antitrust enforcement agencies, to promote best practices in competition and antitrust law and increase policy convergence across the globe. These efforts include participating in international workshops on a wide variety of policy issues. Further, the Division consults bilaterally with a range of international jurisdictions on issues like adopting new antitrust laws, drafting merger guidelines, intellectual property licensing, and cooperation on international investigations and enforcement actions. These efforts have contributed to increased international convergence around sound competition principles and more consistent antitrust enforcement around the world.

Updated January 5, 2023

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