Over the past year, the Antitrust Division of the U.S. Department of Justice (DOJ) has conveyed a consistent position regarding the relationship between antitrust law and intellectual property: strong patent rights and competition policy complement each other rather than conflict. This perspective was underscored by the Division’s recent Statements of Interest filed in federal patent litigation and a policy speech delivered in March 2026 by Deputy Assistant Attorney General Dina Kallay. Through these statements, the DOJ has put forward three core assertions: (1) a patent does not automatically confer market power; (2) antitrust law should not be used to intervene in ordinary patent disputes or patent licensing negotiations; and (3) preserving effective patent remedies—including injunctive relief—is essential for innovation. These official stances provide important guiding principles for IP practitioners and companies engaged in patent enforcement, standard-setting, and patent licensing in the United States.

The DOJ: Injunctions Remain an Important Remedy for the Patent System, and Non-Practicing Entities are Also Entitled to Assert Them

In late February, the DOJ Antitrust Division and the U.S. Patent and Trademark Office jointly filed a Statement of Interest clarifying whether non-practicing patent owners can obtain permanent injunctions after prevailing in litigation. The statement did not take a position on the final outcome of the specific case but elucidated how courts should adjudicate injunctions based on the four-factor equitable standard established by the U.S. Supreme Court in eBay v. MercExchange.

The DOJ argued that: (1) non-practicing entities (NPEs) are not categorically barred from obtaining injunctive relief; (2) patents are unique assets that are difficult to value, meaning damages cannot perfectly substitute the role of an exclusionary injunction; (3) previously awarded damages judgments do not prevent a court from finding that future infringement would cause irreparable harm; and (4) the issuance of an injunction should be tailored to the facts of the case and non-punitive, but must also safeguard the patent owner's constitutionally-derived right to exclude. The DOJ emphasized that excessively restricting a party's right to obtain injunctive relief would weaken market incentives for innovation and might even encourage bad-faith "efficient infringement" behavior.

For IP practitioners, this statement sends a clear signal: even for patent owners whose core business is patent licensing, an injunction remains an effective legal remedy. For companies, this means that once found liable for patent infringement, the litigation risks will further escalate, especially in cases where future infringement damages are difficult to calculate or where it is challenging for the company to design around the patent.

The DOJ: Incorporating a Patent into a Standard Does Not Necessarily Confer Market Power

In early April, the DOJ filed another Statement of Interest—a supplemental background note referring the court to another Statement of Interest filed in October 2025—to clarify "how courts should apply antitrust law to standard-setting activities, and the legal principles for determining market power and exclusionary conduct in that context." While the DOJ did not comment on the merits of the two cases or the relevant motions, in both statements, the DOJ articulated core antitrust principles affecting disputes involving standard-essential patents (SEPs) and reasonable and non-discriminatory (RAND/FRAND) licensing commitments.

In both cases, the DOJ emphasized that the inclusion of a patent in a technical standard does not create a presumption of market power. Instead, courts should examine the actual market conditions, including the existence of alternative technologies and the effectiveness of RAND contractual commitments. Most importantly, the DOJ made a clear distinction between contract disputes and antitrust violations: breaching a RAND obligation or charging high patent royalty rates does not, in itself, constitute exclusionary conduct under the Sherman Act.

The aforementioned statements also reiterated that enforcing patent rights through litigation is generally protected by the Noerr-Pennington doctrine as legitimate petitioning activity. In the absence of sham litigation or fraud committed against a standard-setting organization, the exercise of patent rights (including seeking injunctive relief) should not trigger antitrust liability.

For IP practitioners, these statements provide guidance for defending against antitrust claims related to SEP enforcement and licensing negotiations; for implementers of standards, the statements further clarify that the determination of antitrust risk requires more than just allegations of aggressive licensing or post-standardization conduct; it must involve plausible allegations of market exclusion.

DOJ Official: Antitrust Law and Intellectual Property Law Complement Each Other Rather Than Conflict

The DOJ continues to focus on the intersection of antitrust and IP law not only in its statements but also in speeches by Antitrust Division officials. In March 2026, during a speech at the Center for Strategic and International Studies, Deputy Assistant Attorney General Dina Kallay placed the aforementioned litigation positions within a broader policy framework. She emphasized that antitrust law and IP law share common goals: promoting dynamic competition and innovation.

Kallay disagreed with the view that patents naturally generate market power and reiterated that traditional antitrust analysis applies to intellectual property just as it does to other forms of property rights. She pointed out that SEPs have long been a source of cognitive confusion and emphasized that the status of being an SEP does not itself constitute market power, while RAND licensing commitments generally limit rather than enhance market power.

The speech also highlighted the importance of protecting the exercise of patent rights in court. Kallay warned that expanding antitrust liability to ordinary patent litigation or licensing disputes would stifle innovation and discourage companies from participating in standard-setting organizations.

DOJ Statements and Speeches Reflect a Consistent yet Prudent Attitude toward Antitrust, IP, and Patent Issues

Taken together, the DOJ's recent Statements of Interest and Kallay's speech reflect both a consistent focus and a prudent enforcement philosophy: antitrust law should not be used to weaken patent rights or to transform contract disputes and patent infringement disputes into antitrust competition cases. For IP practitioners, these developments can strengthen claims for injunctive relief, bolster defenses against antitrust litigation based on SEPs, and clarify the boundaries of antitrust liability in the process of patent enforcement. For companies, this highlights that in a policy environment encouraging strong innovation incentives, it remains crucial to conduct licensing activities prudently, comply with standard-related commitments, and perform pragmatic assessments of litigation risks.