On December 6, 2021, the U.S. Department of Justice’s Antitrust Division, the U.S. Patent and Trademark Office, and the National Institute of Standards and Technology jointly issued a draft policy statement concerning standard-essential patent (SEP) licensing and remedies for SEPs subject to a fair, reasonable, and non-discriminatory (FRAND) commitment. The draft statement is being released in response to President Biden’s July 2021 Executive Order on Promoting Competition in the American Economy.
The draft statement moves U.S. standards policy to a much more balanced and bipartisan approach that will secure the future of U.S jobs. The new policy statement makes it clear that prohibitive orders (like injunctions) on SEPs that have been committed to licensing on FRAND terms should generally be unavailable. It also provides general suggested guidance on good-faith licensing negotiations.
WHY IT MATTERS
The new draft policy statement moves U.S. policy on standards and SEP licensing to a pro-competition and pro-innovation position. We need a balanced system for SEP licensing that supports American manufacturing and job creation, and promotes a vibrant benefits standards ecosystem:
receive fair compensation for their patented technology and have a larger market and pool of potential licensees
Innovators Who Use Standards
have certainty that they will have the opportunity to produce and sell products that can interoperate with others on the market
benefit from increased choice and lower prices thanks to a competitive market of innovative products