The USPTO, DOJ and NIST have issued a statement retracting the 2019 policy statement on remedies for SEPs. The Press Release states:
WASHINGTON—The Department of Justice, U.S. Patent and
Trademark Office (USPTO) and the National Institute of Standards and Technology
(NIST) (the Agencies) announced today the withdrawal of the 2019 Policy Statement on Remedies for Standards-Essential Patents
Subject to Voluntary F/RAND Commitments (2019 Statement). After
considering public input on the 2019 Statement and possible revisions, the
Agencies have concluded that withdrawal of the 2019 Statement is the best
course of action for promoting both competition and innovation in the standards
ecosystem.
On Jan. 8, 2013, the Antitrust Division of the Department of
Justice and the USPTO issued a Policy Statement on Remedies for Standards-Essential Patents
Subject to Voluntary F/RAND Commitments (2013 Statement). On Dec. 19,
2019 the Agencies withdrew the 2013 Statement and issued the 2019 Statement,
which offered the views of the Agencies and expressly recognized that it had
“no force or effect of law.”
In July 2021, President Biden issued an Executive Order on Promoting Competition in the American
Economy noting that, “[a] fair, open, and competitive marketplace has
long been a cornerstone of the American economy.” He encouraged the Agencies to
review the 2019 Statement to ensure that it adequately promoted competition.
In response to the Executive Order, on Dec. 6, 2021, the
Agencies issued a Draft Policy Statement on Licensing Negotiations and Remedies
for Standards-Essential Patents Subject to Voluntary F/RAND Commitments and
a request for public comments through a Dec. 6, 2021 news release, extending the deadline for
comments in a Dec. 13, 2021 news release. The Agencies thank the
wide range of individuals, organizations and other stakeholders who
submitted comments, all of which have been considered.
After a review of those comments and a collaborative
deliberation on how best to proceed, the Agencies are announcing the withdrawal
of the 2019 Statement. As noted in the Withdrawal of the 2019 Statement on Remedies for
Standards-Essential Patents Subject to Voluntary F/RAND Commitments,
“[a]fter considering potential revisions to that statement, the Agencies have
concluded that withdrawal best serves the interests of innovation and
competition.”
“The U.S. Patent and Trademark Office is focused on creating
incentives to generate more innovation, especially in underserved communities
and in key technology areas, and maximizing that innovation’s widespread
impact,” said Under Secretary of Commerce for Intellectual Property and USPTO Director
Kathi Vidal. “Forging our global leadership in new industries cannot happen
without greater investment in research and development in technologies that may
become international standards. We also need greater U.S. engagement in global
standards-setting organizations from our large multinational companies, as well
as from small- to medium-sized businesses and start-ups. I stand behind any
measure that will enable innovation that will drive sustainable, long-term
growth in the U.S. economy.”
“The withdrawal of the 2019 Statement will strengthen the
ability of U.S. companies to engage and influence international standards that
are essential to our nation’s technology leadership and that will enable the
global technology markets of today and tomorrow,” said Under Secretary of
Commerce for Standards and Technology and NIST Director Laurie E. Locascio. “A
common thread in so many of the thoughtful stakeholder comments we received is
a commitment to America’s industry-led, voluntary, consensus-based approach to
standards development. This approach consistently delivers the best technical
solutions, and I wholeheartedly support it.”
“The Antitrust Division will carefully scrutinize
opportunistic conduct by any market player that threatens to stifle competition
in violation of the law, with a particular focus on abusive practices that
disproportionately affect small and medium sized businesses or highly
concentrated markets,” said Assistant Attorney General Jonathan Kanter. “I am
hopeful our case-by-case approach will encourage good-faith efforts to reach
F/RAND licenses and create consistency for antitrust enforcement policy so that
competition may flourish in this important sector of the U.S. economy.”
In exercising its law enforcement role, the Justice
Department will review conduct by standards essential patent (SEP) holders or
standards implementers on a case-by-case basis to determine if either party is
engaging in practices that result in the anticompetitive use of market power or
other abusive processes that harm competition. In addition, in accord with
President Biden’s Executive Order, the Agencies plan to continue to cooperate
as appropriate on matters that affect the intersection of competition,
standards development, and intellectual property rights.
Standards-developing organizations (SDOs) and the widespread
and efficient licensing of SEPs on reasonable and non-discriminatory (RAND) or
fair, reasonable and non-discriminatory (FRAND) terms (collectively F/RAND)
help to promote technological innovation, further consumer choice, and enable
industry competitiveness, including in emerging technologies and by new and
small- to medium-sized market entrants.
SDOs may require parties participating in the standards
development process to voluntarily commit to making patents essential to the
standard available on F/RAND terms. The specific F/RAND commitments are
contractual obligations that vary by SDO. United States laws and regulations
govern the interpretation of those contractual obligations and otherwise govern
the conduct of parties participating in SDOs.
No comments:
Post a Comment