Was the Update of the 2015 Business Review Letter to the IEEE Justified?

In September 2020, the Antitrust Division of the U.S. Department of Justice (DOJ) supplemented and updated a Business Review Letter (BRL) that it had issued to the Institute of Electrical and Electronics Engineers Standards Association (IEEE-SA) in 2015, upon a much-debated change made by IEEE-SA to its intellectual property rights (IPRs) policy. The DOJ took this extraordinary step by noting that its BRL had been mischaracterized both domestically and internationally. In this article, we review the evidence and find empirical support for DOJ's concerns. The BRL's only purpose was to state that the DOJ had no intention of bringing an antitrust enforcement action against the IEEE after reviewing the process followed by the organization during its updated IPR policy change. However, some industry groups and agencies cited the 2015 BRL to support a variety of propositions for broader principles around licensing of IPRs. In its update, the DOJ also correctly observes that some of the positions expressed in the BRL have become out of step with the most recent law and policy. Finally, we find empirical evidence supporting the DOJ's concerns that the predicted benefits of the IEEE-SA's 2015 patent policy revisions have not materialized.