Posts Tagged: "FRAND"

Bipartisan Groups of Administration Officials, Senators, Voice Opposition to New Joint Policy Statement on SEPs

Friday, February 4, marked the deadline for submission of comments on the latest iteration of the Joint Department of Justice (DOJ)-U.S. Patent and Trademark Office (USPTO)-National Institute of Standards and Technology (NIST) Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary FRAND Commitments. The request for comments came on the heels of President Joe Biden’s July 2021 Executive Order on Promoting Competition in the American Economy, which asked the three agencies to review the 2019 statement. In perhaps one of the most surprising submissions, a bipartisan group of former presidential administration officials jointly commented that the new version of the Policy Statement is “disconnected from the realities of SEP licensing,” “unbalanced,” and would “disadvantage the United States on the global stage.”

English FRAND Developments to Watch Out for in 2022

For a long time, the courts in England have been a forum of choice for the resolution of disputes between international parties, with the promise of an experienced judiciary and a cost-efficient approach to discovery and expert testimony. The English Patents Court is no exception, with multi-jurisdictional patent disputes often featuring an English action. In addition to the availability of specialist judges and legal teams, the ability to obtain some discovery when needed (but without the extensive, onerous and costly approach to discovery in the United States), to cross-examine experts at trial and to obtain declaratory relief make the UK an attractive jurisdiction. The thorough and reasoned judgments that can prove useful in parallel litigation across Europe and the general availability of injunctions are also key drivers for patentees.

Apple/ Ericsson Dueling FRAND Suits Highlight Issues With Recent Proposed Changes in DOJ’s SEP Policies

On January 19, consumer tech giant Apple filed a complaint with the U.S. International Trade Commission (USITC) asking the agency to institute a Section 337 investigation against Swedish telecom firm Ericsson, asserting a trio of patents related to millimeter wave technology used by electronic devices communicating on mobile 5G networks. The Section 337 complaint is the latest salvo in a legal battle that highlights the mounting tension surrounding standard-essential patents (SEPs) and where infringement litigation fits into the fair, reasonable and non-discriminatory (FRAND) obligations that standards-setting organizations (SSOs) impose upon SEP owners.

Tillis to Garland/ Kanter: Pursuit of New Draft Policy on SEPs Shows a ‘Failure of innovation Leadership’

Senator Thom Tillis (R-NC) today sent a second letter to U.S. Attorney General Merrick Garland and Assistant Attorney General – Antitrust Division at the U.S. Department of Justice (DOJ) Jonathan Kanter expressing concern over the process for releasing, and the substance of, a revised version of the Joint DOJ-U.S. Patent and Trademark Office (USPTO)-National Institute of Standards and Technology (NIST) Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary FRAND Commitments. Tillis sent an initial letter on December 10, 2021, four days after the DOJ published the latest iteration of the Policy Statement for public comment.

Return of the ‘Hold-Up’ Bogeyman: Analyzing the 2021 Draft Policy Statement on SEPs Subject to Voluntary F/RAND Commitments (Part III)

In Part II of this series, we considered the language of a specific licensing commitment made to European Telecommunications Standards Institute (ETSI) and the prevailing law relating thereto. In this Part III, we consider the 2021 Draft Policy Statement with a particular view to highlighting its inconsistencies with the ETSI framework and the inapplicability of the hold-up narrative to the situation involving an individual United States patent. Despite its purported purpose of providing the agencies’ views on “remedies for the infringement of standards-essential patents (or SEPs) that are subject to a RAND and/or F/RAND licensing commitment”, the 2021 Draft Policy Statement does not take a clear position on this issue, instead merely stating the following (some might say “the obvious”):