Comment from Jim Harlan (Founder at the Standard Strategy)
Harlan Strategies, LLCSupportBusiness
Summary: James Harlan, an independent intellectual property practitioner and managing member of Harlan Strategies, LLC, argues that the agencies should issue new guidance that affirms voluntary standards development and FRAND licensing as presumptively pro-competitive. He emphasizes that the current lack of guidance creates uncertainty and calls for a framework grounded in the empirical record, which shows that implementer holdout is a significant issue and that standards collaboration drives innovation.
This comment addresses the antitrust treatment of voluntary standards development and FRAND licensing frameworks in the context of the agencies' joint inquiry on competitor collaboration guidance. The commenter is an independent intellectual property practitioner specializing in standards-essential patents and FRAND licensing with approximately 25 years of experience. The comment argues that FRAND licensing frameworks are presumptively pro-competitive, that the December 2024 withdrawal of the 2000 guidelines created a specific gap affecting the standards ecosystem, and that updated guidance should reflect the empirical record on both innovator undercompensation and implementer holdout. A full written comment is attached.