FSA Commends Withdrawal of US 2019 Policy Statement on Standard Essential Patents

The Fair Standards Alliance (FSA) commends the decision by US agencies to withdraw the 2019 policy statement on standard essential patents and agrees that it was necessary to “best serve the interests of innovation and competition.”

The US Patent & Trademark Office (USPTO), the National Institute of Standards and Technology (NIST), and the US Department of Justice, Antitrust Division (DOJ) have announced the withdrawal of the 19 December, 2019 Policy Statement on Remedies for Standards-Essential Patents (SEPs) Subject to Voluntary F/RAND Commitments (2019 Policy Statement).

The 2019 Policy Statement withdrawal follows another very welcome move in the US – the recent Written Submission on the Public Interest of the US Federal Trade Commissioner (FTC) Chair Lina Khan and Commissioner Rebecca Kelly Slaughter to the US International Trade Commission (ITC) in investigation No. 337-TA-1240. This submission highlighted the public interest in avoiding excessive remedies, such as exclusion orders, that enable SEP holder opportunistic behaviour, including the pressure to exclude willing licensees from the market in order to extract royalties for SEPs that are not fair, reasonable and non-discriminatory (FRAND).

The FSA is pleased to see US government agencies depart from the policy initiatives on SEPs pursued by certain officials in the previous administration favouring interests of a group of companies aggressively monetising SEPs against the interests of entire innovative industries.

We look forward to continued engagement by the Antitrust Division of the DOJ and the FTC in enforcing antitrust law against anticompetitive SEP licensing practices.