U.S. & UK Consult on Standard Essential Patents, Injunctions, FRAND Licensing, and Antitrust

The area of standards, and licensing of Standard Essential Patents (“SEPs”) on “fair reasonable and non-discriminatory terms (“FRAND”) is alive as ever.

There are developments in three jurisdictions:

• On December 6, 2021 the U.S. Patent & Trademark Office (USPTO), the National Institute of Standards and Technology (NIST), and the U.S. Department of Justice, Antitrust Division (DOJ) issued a Draft Policy Statement On Licensing Negotiations And Remedies For Standards-Essential Patents Subject To Voluntary F/Rand Commitments. The draft Statement reflects an attempt to move away from the pro-SEP owner views of the previous administration, and find a middle ground.  They invite comments by February 4, 2022.
• The very next day, the UK Intellectual Property Office IPO issued a Call for Views on the same topic, with an associated press release. The UK deadline is March 1.
• DG Comp of the European Commission just finished its first round of consultations on standardization agreements in the context of the review of the Guidelines on application of EU competition law to agreements between competitors (the “Horizontal Guidelines”). The European Commission’s Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs (DG Grow), moreover, had a series of discussion rounds earlier this year and is expected to start further consultations about new rules for SEP regulation
• The Japanese Patent Office announced they will update its 2018 SEP licensing guidelines in 2022, as well.

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