DOJ/USPTO/NIST 2021 Joint Policy Statement on Licensing Negotiations and Remedies for Standards-Essential Patents Subject to F/RAND Commitments

On 4 February 2022, the United States Department of Justice, Patent and Trademark Office (USPTO) and the National Institute of Standards and Technology (NIST) concluded a public commenting period on its Draft Policy Statement on Licensing Negotiations and Remedies for Standards-Essential Patents Subject to F/RAND Commitments.

The Fair Standards Alliance submitted its response in support of the 2021 Statement, welcoming the new draft statement as a first step to clarify the U.S. government’s positions on several important issues related to the licensing of standard essential patents (SEPs) on “fair, reasonable, and non-discriminatory” (FRAND) terms. Emerging technologies like 5G, the Internet of Things, and artificial intelligence have the potential to play a critical role in President Biden’s plan to promote innovation in the American economy. For such technologies to realize their full potential, it is vital that the underlying standards that support their adoption can be used by all interested stakeholders on reasonable terms. All manufacturers—large and small—must have fair access to these industry standards to produce the jobs, revenue, and innovation that power the American economy and maintain its leadership role globally. Therefore, FSA supports a fair and balanced framework for licensing SEPs when patent holders commit to license them on FRAND terms.

FSA notes in particular that the 2021 Statement addresses SEP licensing and remedies in a more accurate and balanced manner than the previous statement, and reflects the important and growing role played by standards in promoting innovation in emerging technologies like 5G, the Internet of Things, and artificial intelligence. FSA also notes that the 2021 Statement makes significant strides towards recognizing “opportunistic conduct by SEP holders to obtain, through the threat of exclusion, higher compensation for SEPs than they would have been able to negotiate prior to standardization, can deter investment in and delay introduction of standardized products, raise prices, and ultimately harm consumers and small businesses.”

FSA applauds the Agencies for developing an accurate, balanced, and timely statement and trusts that they will follow through with the statement in the near future.