Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Deputy Assistant Attorney General Kallay's remarks keynoted antitrust dinner gathering in New York, (Sep 25, 2025)

By Kenneth H. Ryesky, M.B.A., J.D.

The address was part of the "Innovation Week" touted on social media by the Antitrust Division, in which high-ranking Division officials took the podiums at several antitrust conferences.

Dina Kallay, the Deputy Assistant Attorney General for International, Policy and Appellate, delivered a keynote speech at a dinner in New York on September 18, 2025 entitled "'That’s What F/RANDs Are For' and Antitrust Implications When They’re Gone". The event was organized by Concurrences, a specialty publisher of antitrust books and periodicals. The dinner "has become a traditional event adjacent to Fordham's Annual Conference on International Antitrust Law and Policy." Kallay spoke of "the intersection of two legal frameworks that promote innovation: antitrust and intellectual property (IP)," noting that "policies that promote rather than hinder innovation are more important than ever."

Background. The activities of standards development organizations (SDOs) have legislatively been relieved of per se illegality and are subject to rule-of-reason analysis. This permits SDOs to participate in, if not pilot, collaboration in technological development by entities that otherwise would be competitors in the relevant market. Some technological standards are dependent upon standards essential patents (SEPs). The Antitrust Division seeks to facilitate the adoption of such standards by encouraging SEP holders to contractually license their patents on a fair, reasonable, and non-discriminatory (F/RAND) basis.

Collaborative industry standards without F/RAND assurance. Kallay discussed "scenarios where there is a breakdown of the F/RAND-assured standards development ecosystem." F/RAND commitments, noted Ms. Kallay, are very effective in preventing the abuse of the market power that can accompany a SEP. Where the SEP holder has not voluntarily agreed to a F/RAND commitment, a licensee under a non-F/RAND agreement can become harmed after the license has expired, and at the mercy of the SEP holder who could extort exorbitant conditions for continued licensure, or even entangle the formerly-licensed entity in litigation such as injunctions to force the licensee out of the market. Under such conditions, there would be "no clarity around the future licensing terms and patent owners could later legitimately demand excessive licensing fees after a standard becomes widely adopted." The Antitrust Division is now exploring ways to approach such situations.

Although "pooling or cross-licensing arrangements can have procompetitive characteristics," a proprietary consortium of dominant implementers can easily abuse their collective market power to impede competition.

Infringing patented technology in a developed standard. Kallay also spoke of the joint statement of interest filed by the Antitrust Division and the USPTO in a case in which a developed standard allegedly used a SEP without the patentee's consent [Statement of Interest of the United States, Radian Memory Sys. LLC v. Samsung Electronics Co., Ltd., No. 2:24-cv-1073 (E.D. Tex. June 24, 2025)]. The patentee (Radian) had resisted a dominant market player's (Samsung) pressure to join a consortium because doing so would have required Radian to give free access to all other consortium members. Radian had allegedly suffered harm as a result. The government's statement of interest noted "serious potential for anticompetitive harm in standards development processes that are dominated by large firms who are implementers of the technology in the standard," and that "Radian’s story illustrates the ongoing concerns with proprietary standards development processes, and especially the antitrust implications of such processes.”

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