Trump DOJ files statement of interest effectively in support of InterDigital against Disney’s SEP-related antitrust accusations

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Here’s the filing, most notably signed by Antitrust Assistant Attorney General (AAAG) Abigail Slater and her Deputy Assistant Attorney General Dina Kallay:

In terms of what this statement says about balancing antitrust and intellectual proprty laws, it is very similar to the positions taken by the DOJ during President Trump’s term, with Makan Delrahim (as of today, Paramount’s General Counsel) at the helf of the DOJ Antitrust Division (DOJ-ATR).

The DOJ stresses that the United States District Court for the District of Delaware should not necessarily deem InterDigital to have market power as a result of its patent ownership position. And even if Disney disagrees with the royalty amount that InterDigital is seeking, such royalty demands do not, by themselves, harm the competitive process. Moreover, the DOJ proposes applying the Noerr-Pennington doctrine, which generally shields litigation conduct from antitrust liability.

The statement does recognize both procompetitive and anticompetitive aspects that standards development can have. Just last month, the above-mentioned Deputy Assistant Attorney General, Dina Kallay, delivered a speech on the antitrust implication of standard-essential patents (SEPs) at a dinner organized by Concurrences (September 19, 2025 DOJ publication).

The filing summarizes the procedural history, including cases in other jurisdictions (UPC, Germany, Brazil). The Delaware antitrust case was brought by Disney on August 8, 2025. Interestingly, Disney raised various counterclaims to InterDigital’s infringement lawsuit in the Central District of California, but later filed a separate antitrust complaint on the other coast. InterDigital’s response to the complaint was a September 30, 2025 motion to dismiss those claims or, as a fallback, stay the proceedings. Anyone supporting Disney or (which formally applies to the DOJ here) neither party had one week to file an amicus brief or statement of interest.

While not positioned as a statement in support of InterDigital, the DOJ brief contains positions and conclusions that are rather damning for Disney. In particular, it says that Disney’s antitrust complaint “falls short of [the] requirements” for showing a Sherman Act Section 1 or 2 violation. The DOJ rejects the notion that the inclusion of a patented technique in a standard confers market power upon the patent holder (in that regard, U.S. case law differs from the European Huawei v. ZTE framework).

One of the deficiencies of Disney’s antitrust accusations that the DOJ’s statement identifies is that there is no “identification of potential alternative technologies.” Nor is there “an explanation of why InterDigital’s exercise of market power is not limited by those multiple SDO obligations and legal principles, even though they serve in part as the basis of Disney’s affirmative defenses and counterclaims in its ongoing California patent litigation with InterDigital.” Between the lines, this is another way of saying that Disney is contradicting itself. Its own defenses and counterclaims in California actually show that InterDigital does not have unlimited pricing power. That may be one of Disney’s motivations for bifurcating the dispute and pursuing antitrust claims in Delaware, apart from regional (circuit-level) case law. The DOJ does not speculate on Disney’s venue choice, but it is easy to see why Disney would rather pursue its antitrust claims separately from its contract claims, and litigate the antitrust claims in the Third Circuit rather than the Ninth with its FTC v. Qualcomm case law.

The DOJ points to the requirement under U.S. case law that an antitrust claim under the rule of reason “must identify conduct that has harmed the competitive process.” That is distinguishable from (and goes substantially beyond) harming competitors, for example.

In the DOJ’s opinion, “Disney’s other allegations fail to establish harm to competition as they are aimed at conduct that occurred after the competitive period of standard adoption.” In this regard, even if Disney could show that InterDigital violated contractual obligations by seeking supra-FRAND terms, “that would not, in and of itself, constitute exclusionary or anticompetitive conduct cognizable under the antitrust laws.” After all, “a patent holder is not obliged by antitrust law to license its product on any specific terms, including price.”

The DOJ says Disney should seek contract remedies, even though it may prefer “treble damages in an antitrust action.”

If United States District Judge Maryellen Noreika agrees with the DOJ, InterDigital will win a dismissal of most if not (ultimately) all of Disney’s claims. The DOJ does not take a position on every relevant question, but in a hypothetical scenario where the parts of the complaint that the DOJ does not address survived, InterDigital could probably defeat those parts (if not at this stage, then further down the road).

The likelihood of a settlement is clearly increasing. Disney is under enforcement pressure, and its FRAND (fair, reasonable and non-discriminatory licensing) counterclaims and antitrust countersuit are facing a high hurdle. The DOJ is not above the district court, but its statement of interest describes the state of U.S. antitrust case law on patent-related (and particularly SEP-related).