The Politics, Policy and Legislation of Standard Essential Patents

The Politics, Policy and Legislation of Standard Essential Patents

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The U.S. Department of Justice (DOJ), the U.S. Patent and Trademark Office (USPTO) and the National Institute of Standards and Technology (NIST) announced in June 2022 that they were officially withdrawing the 2019 Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments. However, the withdrawal does not reinstate the 2013 Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments, which had been harshly criticized by many in the IP community. As a result, the Biden Administration seems to be taking a position of neutrality, at least for now. How the Administration will treat patent owners, many who do not have a real prospect for a negotiated resolution due to recalcitrant implementers, will be the real test.

Meanwhile, the European Commission is undertaking both its own antitrust guideline review as well as review of SEP regulations.

This panel will discuss what the Federal Trade Commission (FTC) and Department of Justice (DOJ) are doing (or not doing) relative to essential patents, the future of novel/creative antitrust theories such as the “duty to deal and “essential facilities doctrine”, whether another agency or Congress will step into any vacuum, and what implications and impact the ongoing review of the European Commission will have on standard essential patents globally, and in the United States specifically.

Materials

DOJ, USPTO and NIST Withdraw SEP Policy Statements

The Biden Administration’s Neutrality Position on SEP Remedies is a Good Move

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