Of course, the
particular F/RAND commitment made by a patent owner, the SDO’s intellectual
property policies, and the individual circumstances of licensing negotiations
between patent owners and implementers all may be relevant in determining
remedies for infringing a standards-essential patent, depending on the
circumstances of each case. Further,
individual parties may voluntarily contract for or agree to specific dispute
resolution mechanisms.
In the Agencies’
view, courts, the U.S. International Trade Commission, and other decision makers in
their discretion should continue to consider all relevant facts, including the conduct
of the parties, when evaluating the general principles of law applicable to
their remedy determinations involving standards-essential patents, such as the
factors enumerated in eBay or 19 U.S.C. § 1337, as appropriate. The courts are
“more than capable of considering these factual issues” when deciding whether
to award remedies for infringement.20 In the Agencies’ view, courts—and other
relevant neutral decision makers—should continue to determine remedies for infringement
of standards-essential patents subject to F/RAND licensing commitments pursuant
to the general laws.
A balanced, fact-based analysis, taking into account all available remedies, will
facilitate, and help to preserve competition and incentives for innovation and
for continued participation in voluntary, consensus-based, standards-setting
activity.
The policy statement
is available, here.
