The Justice Department should be “vigilant in monitoring the anticompetitive...

Antitrust Subcommittee Chairman Herb Kohl, D-Wis., sent a letter Thursday to Attorney General Eric Holder on the DOJ Antitrust Division’s decisions to allow Google’s acquisition of Motorola Mobility, and Apple, Microsoft and Research In Motion’s acquisitions of Nortel patents. “While we take no position on the merits of the acquisitions, we take seriously the concern raised by the Department about the potential for ‘inappropriate use of [standard essential patents] to disrupt competition … particularly as they relate to smartphones and computer tablets,'” Leahy and Kohl said. “We share the Department’s concern that patent holders may choose to seek an exclusionary order from the International Trade Commission (ITC) in a manner that would threaten competition, rather than simply dispute the reasonable terms of the license in court in a way that would allow continued use by competitors. The misuse of ITC exclusion orders to prevent rival technologies poses a significant threat to competition and innovation, especially where competitors have developed products based on a mutual commitment within a standard-setting organization to license standard essential patents on reasonable and nondiscriminatory terms.” Leahy and Kohl believe that ITC exclusion orders may have “anticompetitive effects” if “a patent is part of a standard and is encumbered by an agreement to license the patent on reasonable and nondiscriminatory terms,” they said.