The US Department of Justice, Antitrust Division is seeking public comments regarding a new draft policy statement regarding SEPs and FRAND. Details are below:
The Department of Justice announced today that it is
requesting public comment on a new
draft policy statement concerning standards-essential patents (SEPs)
that seeks to promote good-faith licensing negotiations and addresses the scope
of remedies available to patent owners that have agreed to license their
essential technologies on reasonable and non-discriminatory or fair,
reasonable, and non-discriminatory (F/RAND) terms. The Justice Department
worked with U.S. Patent and Trademark Office (USPTO) and the National Institute
of Standards and Technology (NIST) in responding to President
Biden’s recent Executive Order on Promoting Competition in the American Economy,
which encouraged the agencies to review the 2019 Policy
Statement on Remedies for Standards-Essential Patents Subject to Voluntary
F/RAND Commitments to ensure that it adequately promoted competition.
Together the agencies, after consulting with the Federal Trade Commission, are
now issuing a revised draft statement for public comment.
“The department looks forward to working with our agency
partners,” said Assistant Attorney General Jonathan Kanter of the Justice
Department’s Antitrust Division. “We are committed to taking a principled,
transparent, and balanced approach at the intersection of intellectual property
and antitrust law.”
The draft statement is open to public comment for 30 days and
provides a framework to facilitate good-faith licensing negotiation between SEP
owners and potential licensees. It also discusses what remedies may be
available when SEPs subject to voluntary F/RAND commitments are infringed. The
draft statement indicates that good-faith negotiation that leads to widespread
and efficient licensing between SEP holders and those who seek to implement
standardized technologies can help to promote technology innovation, further
consumer choice, and enable industry competitiveness. The draft statement will
not be finalized until the agencies consider all stakeholder input.
In particular, the agencies are interested in comments
addressing the following questions:
- Should the 2019 Policy
Statement on Remedies for Standards-Essential Patents Subject to Voluntary
F/RAND Commitments be revised?
- Does the draft revised statement appropriately
balance the interests of patent holders and implementers in the voluntary
consensus standards process, consistent with the prevailing legal
framework for assessing infringement remedies?
- Does the draft revised statement address the
competition concerns about the potential for extension of market power
beyond appropriate patent scope identified in the July
9, 2021 Executive Order on Promoting Competition in the American Economy?
- In your experience, has the possibility of injunctive
relief been a significant factor in negotiations over SEPs subject to a
voluntary F/RAND commitment? If so, how often have you experienced this?
- Are other challenges typically present in negotiating
a SEP license? If so, what information should be provided or exchanged as
a practical matter to make negotiation more efficient and transparent?
- Are small business owners and small inventors
impacted by perceived licensing inefficiencies involving SEPs? If so, how
can licensing be made more efficient and transparent for small businesses
and small inventors that either own, or seek to license, SEPs?
- Will the licensing considerations set forth in the
draft revised Statement promote a useful framework for good-faith F/RAND
licensing negotiations? In what ways could the framework be improved? How
can any framework for good-faith negotiations, and this framework in
particular, better support the intellectual property rights policies of
standards-setting organizations?
- What other impacts, if any, would the draft revised
statement have on standards-setting organizations and contributors to the
standards development process?
- The draft revised statement discusses fact patterns
intended to indicate when a potential licensee is willing or unwilling to
take a F/RAND license. Are there other examples of willingness or
unwillingness that should be included in the statement?
- Have prior executive branch policy statements on SEPs
been used by courts, other authorities, or in licensing negotiations? If
so, what effect has the use of those statements had on the licensing
process, outcomes, or resolutions?
- Are there resources or information that the U.S.
government could provide/develop to help inform businesses about licensing
SEPs subject to a voluntary F/RAND commitment?
Interested parties, including attorneys, economists,
academics, consumer groups, industry stakeholders or other members of the
public may submit public comments to Regulations.gov until
Jan. 5, 2022. Information about the draft revised statement can also be found
on the Antitrust
Division’s website.
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