DOJ Again Pushes Back Against Antitrust Claims Filed Over Allegations of SEP Abuse, False RAND Promises

Yesterday, the U.S. Department of Justice (DOJ) filed a statement of interest (SOI) in an ongoing patent infringement case between consumer electronics giant Samsung and memory systems developer Netlist, which includes counterclaims by Samsung for violations of U.S. antitrust law. The SOI reiterates arguments made by the DOJ in other litigation involving standard essential patents (SEPs), asking the court to render its decision on Samsung’s antitrust claims in accordance with the fact that inclusion in a technical standard does not create a presumption that patent rights create market power.

RAND Licensing Commitments Tend to Limit Market Power Under Antitrust Analysis

Netlist and Samsung have been waging a patent battle in multiple fora with a recent pair of judgments in Netlist’s favor resulting in more than $420 million in damages for infringement being levied against Samsung. The present case targeted by the DOJ’s statement of interest was filed by Samsung on the last day of 2025, when it filed a sealed complaint in the District of Delaware including counterclaims against Netlist for violation of Section 2 of the Sherman Antitrust Act. Samsung argues that the inclusion of Netlist’s patents into technical standards for computer memory confers market power on Netlist, and that Netlist falsely represented to the standard developing organization (SDO) that it would license its essential patents on reasonable and nondiscriminatory (RAND) terms.

Attached to the DOJ’s SOI as an exhibit is the longer statement of interest filed by the DOJ last October in another Delaware district court patent case featuring infringement claims between Disney and InterDigital. Disney had claimed antitrust violations caused by InterDigital’s monopolization in video compression and streaming technology, refusal to license patents on RAND terms and acquisition of patents for the purposes of increasing royalty payments. While the DOJ’s statement took no position on the ultimate outcome in that case, it established that market power should not be presumed simply because a patent has been incorporated into a technical standard.

The relevant antitrust analysis for SEPs requires an assessment as to alternatives to the technical standard to which the patents have been declared essential, as well as any contractual obligations or commitments the patent owner has made under the SDO’s patent policy that limit market power, the DOJ noted in the Disney SOI. The DOJ highlighted several of Disney’s allegations that actually tended to limit InterDigital’s ability to exercise market power, including RAND licensing commitments and applications of patent-exhaustion law. The DOJ added that Disney’s allegations were not accompanied by any identification of potential alternative technologies or explanation of how InterDigital’s market power isn’t limited, despite those serving as the basis of counterclaims and affirmative defenses in parallel litigation between those parties in the Central District of California.

Broadcom Theories of Liability Must Focus on SDO Abuses, Not Supracompetitive Royalties

Samsung, like Disney, also focused its antitrust allegations on supracompetitive royalty rates that exceeded RAND obligations. In the Disney SOI, the DOJ argued that this failed to establish harm because it focuses on conduct occurring after the competitive period of standard adoption. To the extent that Disney argued InterDigital had harmed the competitive SDO process leading to adoption of the technical standard, that argument invoked the Third Circuit’s 2007 ruling in Broadcom v. Qualcomm, which held that intentional false promises to license on RAND terms, coupled with an SDO’s reliance on that promise, could constitute exclusionary conduct. “Disney’s allegations of fraud during the competitive SDO standards-development process, however, appear largely conclusory,” the DOJ had argued.

The DOJ noted that Samsung’s raised a Broadcom theory against Netlist by alleging false promises to license patents within RAND obligations, leading to the SDO’s reliance when publishing industry-wide standards including Netlist’s patents as SEPs. The brief statement filed on Samsung’s allegations reiterates the focus on abuses to the competitive SDO process under a Broadcom theory of liability, adding that a violation of contractual obligations including failing to negotiate on RAND terms does not of itself constitute exclusionary behavior cognizable under U.S. antitrust laws.

The DOJ concluded its brief SOI in Samsung’s case by asking the Delaware district court to consider the legal principles laid out in the Disney SOI when rendering a decision on Netlist’s pending motion to dismiss Samsung’s antitrust claims. This SOI is the latest legal filing by the DOJ in support of legal rights held by patent owners, a position it also took in a joint statement filed in late February with the U.S. Patent and Trademark Office in an Eastern Texas patent case between Samsung and non-practicing entity (NPE) Collision Communications. That joint statement supported the availability of injunctive relief without respect to whether the technology of the asserted patents was practiced by the patent owner, citing the difficulty of accurately calculating damages for infringement and the fact that NPEs can still suffer irreparable harm not compensable by monetary damages.