DOJ Frames FRAND as the Antitrust ‘Safety Valve’ for Standards Development—Deputy AAG Kallay Speaks at CSIS LeadershIP 2026

Dina Kallay, Deputy Assistant Attorney General for Antitrust at the U.S. Department of Justice, publicly articulated the DOJ’s position on standard essential patents (SEPs) and FRAND licensing on March 25, 2026, during the LeadershIP 2026 conference hosted by the Center for Strategic and International Studies (CSIS) in Washington, DC. Kallay stated that the DOJ “tolerates standards development… thanks to the FRAND or RAND safety valve,” framing fair, reasonable, and non-discriminatory licensing obligations as the antitrust justification that allows standards-setting organizations to operate without triggering antitrust liability.

The statement comes at a pivotal moment in global SEP policy. While the European Commission has moved to impose regulatory mandates on SEP holders through its proposed SEP Regulation, the U.S. government’s stance has remained less defined. Kallay’s remarks represent the clearest signal yet of how the DOJ views the balance between standards development and competitive markets.

The LeadershIP 2026 Conference

LeadershIP 2026 was billed as “the premier conference on intellectual property, innovation, and national security policy,” bringing together legislators, government officials, academics, and industry representatives. The March 25 event at CSIS featured fireside chats with Representative Deborah Ross (D-NC) and USPTO Deputy Director Coke Morgan Stewart, and panels covering biotech policy, AI and copyright, and SEP antitrust issues.

Kallay spoke on Panel IV, “The Streaming Era: The New Intersection of IP, Antitrust, and Standards,” which addressed evolving licensing models and patent pool disputes in video coding standards. Fellow panelists included Steve Jedlinski, Chief Legal Officer of Sisvel, and Kyle Mach, partner at Sullivan & Cromwell.

FRAND as Antitrust Safe Harbor

The core of Kallay’s remarks centered on the DOJ’s view that FRAND commitments serve as the mechanism by which standards-setting activity avoids antitrust liability. When patent holders contribute their technology to a technical standard, they gain significant market power—every implementer of that standard must license their SEPs. Without the FRAND safety valve, this concentrated leverage would raise serious antitrust concerns.

By framing FRAND as the very reason the DOJ “tolerates” standards development, Kallay confirmed that the department treats these licensing obligations not as a burden on patent holders, but as an essential condition for the antitrust permissibility of the standards ecosystem. SDOs that require FRAND commitments from contributors are, in the DOJ’s view, addressing the competitive risk inherent in standard-setting.

An Implicit Caution on Royalty-Free Consortia

Kallay’s remarks were understood to reference royalty-free patent consortia such as the Alliance for Open Media (AOM)—a standards body backed by Amazon, Apple, Google, and Microsoft that develops royalty-free video codecs such as AV1. By explicitly pointing to FRAND as the justification for DOJ tolerance, the department signaled a preference for licensing frameworks that provide meaningful compensation to innovators.

The implication is that royalty-free models, which eliminate patent licensing revenue for contributors, may not provide the same competitive equilibrium as FRAND-based frameworks. This reading carries significance for ongoing debates about the value of royalty-free versus FRAND-based standardization in sectors ranging from video streaming to 5G and beyond.

Contrast with EU Regulatory Approach

The DOJ’s position stands in contrast to the European Commission’s approach to SEP regulation. The EU’s proposed SEP Regulation would require patent holders to undergo third-party essentiality assessments before presenting FRAND offers to licensees—a mechanism critics argue tilts the negotiating balance against patent holders. The U.S. has consistently pushed back against such regulatory intervention.

Kallay’s framing—trusting the FRAND mechanism itself rather than layering additional government mandates on top—reflects the U.S. preference for market-based solutions operating within existing legal frameworks. This aligns with America’s traditional approach to competition policy, which has favored private ordering over direct price regulation in IP-intensive industries.

As we have previously reported, the SEP-FRAND debate now extends well beyond telecommunications into sectors like EV charging, IoT, and AI-driven standards. The DOJ’s framing will likely inform how courts and practitioners approach FRAND disputes in these emerging domains.

What to Watch: The DOJ-USPTO Joint Statement

According to IPWatchdog’s reporting, the DOJ Antitrust Division is expected to release a joint statement with the USPTO outlining SEP policy guidance. That statement, when published, will provide a more comprehensive view of the U.S. government’s coordinated approach to standard essential patents.

Key questions to watch include whether the DOJ articulates specific conditions under which FRAND commitments will be treated as sufficient antitrust protection, and how the agencies will address scenarios where SDOs adopt royalty-free frameworks. IP counsel advising on SEP licensing, litigation strategy, and standards participation should monitor these developments closely.