Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Antitrust Division outlines patent-antitrust balance in Hudson Institute remarks, (Jul 10, 2026)

By Wendy Biddle, J.D.

Deputy AAG Dina Kallay details recent statements of interest on standard-essential patents, injunctions, and disclosure obligations, framing the agency's approach to intellectual property enforcement.

Dina Kallay, Deputy Assistant Attorney General in the Justice Department's Antitrust Division, used a July 8 address at the Hudson Institute Forum for Intellectual Property to lay out the Division's current thinking on the intersection of patent rights and antitrust enforcement, arguing that neither standard-essential nor non-essential patents should be presumed to confer market power and that patent holders generally retain the ability to seek injunctive relief.

Kallay's remarks, delivered under the title "The Innovation Dance: Navigating the Balance of Intellectual Property and Antitrust in a Global World," surveyed several recent Division filings in ongoing litigation and cited the Administration's National Policy Framework for Artificial Intelligence as evidence that balancing creator protections against lawful innovation remains a governing concern across agencies.

Kallay traced the Division's position to the 1995 Antitrust-IP Guidelines and to the Supreme Court's 2006 decision in Illinois Tool Works Inc. v. Independent Ink, Inc., both of which reject any presumption that patent ownership equates to market power. She illustrated the point with the history of inventor Robert Kearns, who patented the intermittent windshield wiper but was unable to commercialize it despite years of litigation against major automakers, an example she offered to show that a patent alone does not establish market dominance.

Building on that foundation, Kallay described the Division's October 2025 statement of interest in Disney v. InterDigital, filed in the District of Delaware, which addressed whether incorporation of a patent into an industry standard changes the market-power analysis. The Division's filing stated there is no presumption of market power simply because a patent has been incorporated into a standard, and identified two factors relevant to that analysis: whether alternative standards exist, and whether the patent holder has made licensing commitments to a standards development organization. Kallay noted that this position aligns with the European Commission's horizontal cooperation guidelines, which similarly reject any presumption tied to standard-essential status.

The Disney filing also addressed the plaintiff's effort to impose antitrust liability on InterDigital for pursuing infringement litigation. Kallay said the Division's position is that such petitioning activity is protected under the First Amendment and that litigation is typically the only mechanism available to enforce patent rights, subject to recognized exceptions such as sham litigation and the Walker Process doctrine. She drew a parallel to the European Court of Justice's 2015 decision in Huawei v. ZTE, which she said reflects similar principles regarding a patent holder's right to seek judicial relief.

The Division reiterated these positions in an April 2026 statement of interest in Samsung v. Netlist, and again in a joint comment filed with the U.S. Patent and Trademark Office in an International Trade Commission proceeding involving Netlist's infringement complaint against Samsung over DRAM devices, Kallay noted. That comment argued that the general importance of an infringing company's technology does not, by itself, weigh against issuance of an exclusion order under the ITC's public interest factors.

Kallay discussed a statement of interest the Division filed with the USPTO in Collision Communications v. Samsung, pending in the Eastern District of Texas on the question of injunctive relief for non-practicing entities. After a jury found Samsung had infringed four of Collision's patents, Collision sought to enjoin further infringement of one patent, triggering application of the four-factor test set out in eBay Inc. v. MercExchange, L.L.C. The Division's filing argued that patent holders willing to license their patents can, under certain circumstances, establish irreparable injury and the inadequacy of monetary relief. Kallay noted that the district court's subsequent order found Collision had established irreparable harm and inadequacy of damages, though it ultimately denied the injunction motion for failing to satisfy the balance-of-hardships and public-interest factors. She quoted the court's finding that "irreparable harm can be demonstrated by a non-practicing entity given that (1) patents can be difficult to value and (2) damages can be difficult to calculate."

Turning to international enforcement, Kallay referenced the 2026 Special 301 Report issued by the Office of the U.S. Trade Representative, which identified three global trends the report characterized as harmful to U.S. patent holders: anti-suit injunctions barring enforcement abroad, compelled global licensing on court- or government-set terms, and efforts to restrict the availability of injunctions against infringement.

Finally, Kallay pointed to the Division's May 2026 statement of interest in Corteva Agriscience v. Inari Agriculture, pending in the District of Delaware, which addressed the scope of patent disclosure obligations. The filing emphasized that the patent system's quid pro quo requires meaningful public disclosure in exchange for the exclusionary period granted to inventors.

Kallay concluded by describing convergence between U.S. and European approaches to patent-antitrust analysis, and said the Division intends to continue coordinating with the USPTO and international counterparts on these issues.

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