23 May 2019. The Fair Standards Alliance limits its comments to the status of intellectual property protection for patents that are essential to industry standards (“Standards Essential Patents” or “SEP’s”). While there have been a number of positive developments with respect to the appropriate intellectual property protections for SEPs in the United States, including a decision by the United States District Court for the Northern District of California holding certain SEP licensing practices to be violations of the antitrust laws, in other respects, certain developments around the level of IPR protection and enforcement have raised concerns.
On December 8, 2018, the Assistant Attorney General for the Antitrust Division at the Department of Justice (AAG) announced in a speech that the Antitrust Division is withdrawing its assent to the 2013 joint DOJ-U.S. Patent & Trademark Office “Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments” (2013 Policy Statement), and further indicated that the Antitrust Division will investigate and bring enforcement actions to address alleged collusion in standard setting organizations (SSOs).
As the FSA explained in a multi-organization letter to the USPTO and the U.S. Department of Commerce, the 2013 Policy Statement represents a thoughtful and deliberate multi-agency approach to standardization, patents, and competition. It explains that injunctive relief may be limited in light of the FRAND commitments made by SEP licensors. The 2013 Policy Statement provides much-needed guidance regarding the intersection of standardization, intellectual property, and the vital role of competition law; and it has discouraged abusive tactics. The 2013 Policy Statement is also supported by a strong (and still growing) body of precedent, which affirms the role of competition law in upholding FRAND licensing commitments to maintain competition and incentivizing innovation.
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