The Guidelines Are Gone. Here Is What Needs to Replace Them.
A summary of my comment to the DOJ/FTC "Guidance on Business Collaborations"
On December 11, 2024, the Federal Trade Commission (”FTC”) and the Department of Justice (”DOJ”) Antitrust Division withdrew the Antitrust Guidelines for Collaborations Among Competitors that had governed voluntary standards development since April 2000. The vote was 3-2. Commissioners Ferguson and Holyoak dissented on the ground that withdrawal without replacement guidance creates enforcement uncertainty rather than resolving it.
That dissent identified the real problem. The withdrawal statement says explicitly that it “does not prescribe how the Agencies will analyze antitrust issues raised by collaborations going forward.” The 1995 Antitrust Guidelines for the Licensing of Intellectual Property, on which the 2000 guidelines relied, had already been withdrawn. Businesses engaged in voluntary standards development and standards-essential patent licensing now operate without any surviving framework document.
I filed a comment on the public docket yesterday (Docket No. ATR-2026-0001). What follows is the argument I made, and why it matters.
What the inquiry is actually about
The DOJ/FTC joint inquiry asks three questions: what topics would benefit from additional guidance, what new technologies warrant clarity, and what significant legal and economic developments should inform revised guidelines. All three converge on the same domain: voluntary standards development through bodies like the Third Generation Partnership Project (”3GPP”), the Institute of Electrical and Electronics Engineers (”IEEE”), and the European Telecommunications Standards Institute (”ETSI”), and the Fair, Reasonable and Non-Discriminatory (”FRAND”) licensing framework that makes standards-based innovation commercially viable.
The agencies have an opportunity here that the 3-2 vote itself signals will not come around often. Two sitting FTC commissioners called for replacement guidance. The new administration has declared 6G a national security priority. The empirical record on two decades of theoretical harm claims has accumulated. This is the moment to get the framework right.
The harm theory that never found its evidence
The argument for aggressive antitrust oversight of FRAND licensing has circulated since the late 1990s. Its core claim is that SEP holders extract excessive royalties by threatening to block standard-compliant products, a dynamic called patent hold-up. Regulators have returned to this theory in jurisdiction after jurisdiction, generating enforcement actions, proposed regulations, and policy statements premised on it.
The empirical record has not confirmed it.
By early 2015, more than two dozen economists and lawyers had disputed the assumptions underlying the hold-up and royalty stacking conjectures. Anne Layne-Farrar’s 2014 survey of 15 years of economic literature for the OECD concluded that the studies had not shown hold-up to be a common problem. More recently, Bowman Heiden and Justus Baron, writing in the Harvard Journal of Law and Technology in 2024, examined the actual royalty picture and found not excessive extraction but a royalty gap: SEP holders are undercompensated for their patents by an estimated $7 to $28 billion annually as of 2021. They attribute the gap in significant part to implementer holdout, the strategic decision by firms to infringe rather than license, counting on the costs and delays of litigation to reduce or eliminate the payment they eventually make.
That finding inverts the standard regulatory narrative. It does not mean hold-up never occurs. It means guidance premised on hold-up as the dominant concern, while ignoring holdout, will systematically protect the wrong party.
What the record shows when guidance tilts toward implementers
The most direct evidence available is the IEEE’s own experience following the DOJ’s February 2015 BRL endorsing revisions to the IEEE’s intellectual property rights policy. New positive letters of assurance for 802.11 standards dropped 90 percent. Negative letters of assurance reached an all-time high in 2016. During 2015 through 2018, negative letters outnumbered new positive submissions. ISO/IEC formally raised concerns about IEEE standards entering the international fast-track process carrying unresolved negative assurances. ANSI declined to approve certain IEEE 802.11 standards as American National Standards.
In September 2022, IEEE rescinded the core provisions of the 2015 policy. The DOJ acknowledged in a subsequent filing that the policy may have discouraged participation, increased negative assurances, and contributed to the ANSI approval failures. That is not a theoretical prediction of harm. It is a documented outcome with named institutional consequences.
The agencies are not being asked to weigh in on a neutral policy domain. They intervened in this ecosystem before, watched the consequences accumulate, and are now soliciting input on what updated guidance should say. The prior intervention belongs in that analysis.
Why this is a 6G question, not just a licensing question
A February 2026 Boston Consulting Group analysis puts the economic stakes in concrete terms. 5G-enabled applications have already generated over $1 trillion in global economic impact. BCG projects cumulative value reaching $6.1 trillion by 2030 and $18.2 trillion by 2035. Those figures reflect the output of the same voluntary standards collaboration framework this inquiry addresses.
The same report documents that companies focused on core wireless technologies invest approximately 20 percent of revenues in R&D, comparable to pharmaceuticals and well above the rates committed by Apple, Amazon, and Google. BCG states directly: when IP enforcement becomes uncertain, it deprives these firms of the revenue that fuels R&D investment, undermining their ability to innovate and to compete for standards leadership. Regions that underinvest in R&D may find they have limited influence over standard development and must depend on foreign technology baselines.
The competitive context is not abstract. Western companies drove the development and standardization of technologies powering 2G through 5G. China has expanded its standards development role during the same period. South Korea and India have articulated explicit national targets for 6G standard-related patent shares. President Trump stated in December 2025 that 6G will be foundational to U.S. national security and pivotal to the development of artificial intelligence. Senate Commerce Committee Chairman Ted Cruz has warned that failure to lead in 6G would allow Huawei to create the backbone, “handicapping our efforts in other adjacent technologies like AI, quantum, and semiconductors.”
None of that is consistent with guidance that treats FRAND licensing as a presumptive antitrust concern.
What updated guidance should say
The comment I filed makes four specific asks.
Guidance should state that good-faith participation in open, voluntary standards development organizations is presumptively pro-competitive. The 2007 DOJ/FTC joint report on antitrust and intellectual property said as much. A new framework document should say it plainly and place the burden on those who claim otherwise to provide evidence, not theory.
Guidance should recognize FRAND licensing and joint licensing through patent pools as part of the incentive structure that makes standards-based innovation possible, not as categories of conduct presumptively suspect under antitrust law.
Guidance should address implementer holdout as a competitive harm on equal footing with patent hold-up. The Heiden and Baron royalty gap finding, the Gupta and Petrovčič systemic holdout documentation in the Berkeley Technology Law Journal, and the IEEE sequence described above all point in the same direction. An asymmetric framework that scrutinizes SEP holders while ignoring strategic non-licensing conduct by implementers will produce asymmetric outcomes. The comment also addresses a related tactic: some implementers have used the genuine complexity of value-chain licensing questions as a pretext for refusing to take any license at all, treating unresolved policy questions as a reason to avoid engagement rather than resolve them. Guidance that recognizes this dynamic will produce a more accurate picture of how FRAND licensing actually functions in practice.
Finally, guidance should be grounded in the empirical record as it now exists, not as it was theorized in the late 1990s. The withdrawal statement cited outdated analytical methods as a reason the 2000 guidelines no longer served their purpose. That logic applies with equal force to the underlying assumptions those guidelines carried forward from an earlier era of IP and antitrust thinking.
The dissenting commissioners asked for clarity. The filed comment argues for what that clarity should say.
The comment will be on the public docket at Docket No. ATR-2026-0001, but it is not as of the date of this article. (link, https://www.regulations.gov/docket/ATR-2026-0001)
Jim Harlan is an independent intellectual property practitioner with approximately 25 years of experience specializing in standards-essential patents, FRAND licensing, and standards policy. He publishes Standards at Risk at standardsatrisk.com.