Of Antitrust and Patents: the Quiet Return of the Status Quo at the DOJ’s Antitrust Division

The consistent theme running through Makan Delrahim’s tenure as head of the Department of Justice’s Antitrust Division was protecting dynamic innovation. More than any Assistant Attorney General in recent history, Delrahim saw antitrust as a way to keep the paths to innovation clear. This made him very focused on incumbents who took action to prolong their incumbency by keeping disruptive innovators at bay. 

Delrahim himself was something of a disruptive innovator at DOJ. A protégé of Orrin Hatch, he was far from an ideologue. To give just one example, Delrahim brought counsel Doha Mekki into his front office, where her primary job was to focus on antitrust enforcement in labor markets. This is not something that one would regard as a “typical” Republican concern.

At times, his habit of questioning how things were done and thinking about how things could be done differently undoubtedly did not sit well. He brought cases that others thought should not be brought, and settled cases others thought should be litigated. He shuffled responsibility for commodities so that, for example, financial services, fintech, banking, and credit cards were all handled by the same section instead of being divided among different sections. His effort to bring about institutional and policy change at DOJ is relevant to the Biden administration, an object lesson about how hard it is to turn the battleship either to the right or to the left. 

In a small but significant way, the DOJ appears to have reverted back to its old pre-Delrahim course. Earlier this month, the DOJ demoted—some might say “buried”—a Business Review Letter containing Delrahim’s views on “standard-essential patents.” Moving a document from one place to another on a government website hardly seems like a significant change in direction. But in this case, it has been understood as a return to Obama-era policy. 

Policy decisions about the relationship between patents and antitrust belong to the Biden administration, and should await the confirmation of the next Assistant Attorney General.

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