Reflections on a year of patent policy
If there’s one big takeaway from patent policy in recent years, it’s the extent to which standard essential patents (SEPs) are increasingly shaping the IP and, in some cases, the wider tech policy agenda in the U.S., Europe and Asia. That’s not surprising given the importance of standardized technologies such as 5G, but it does also mean that policymakers need to tread extremely carefully to protect the balance between innovators and those who implement these technologies in their devices.
We began 2022 knowing that the patent policy landscape was going to change and leading the way was the move by the U.S. Patent and Trademark Office (USPTO), the Department of Justice’s Antitrust Division and the National Institute of Standards and Technology (NIST) to withdraw a 2019 policy statement on SEP FRAND remedies. They also announced that a new draft policy statement would not be implemented and that the U.S. Government would review the conduct of SEP owners and implementer companies on a case-by-case basis.
This was a welcome development, not least because commercial disputes are best settled by the parties themselves or through some form of dispute resolution if the parties can’t agree – not through government policymaking.
We’re still waiting to see how that case-by-case approach might work in practice, but another encouraging development in the U.S. was USPTO Director Kathi Vidal’s strong endorsement of increasing participation in global standards by U.S. headquartered companies. The development of 5G shows that this is badly needed since there are just two U.S. headquartered innovators – InterDigital and Qualcomm – among the leading developers of the 5G standard.
In a blog post in September, PTO Director Vidal wrote, “We must continue to encourage U.S. participation in standard-setting organizations and the efficient and effective adoption of those technologies by our industries, as part of our efforts to promote innovation in the standards space and drive sustainable, long-term growth in the U.S. economy.”
I welcome the link between participation in standardized technologies and long-term economic growth, but I would argue more still needs to be done to explain how more robust patent rights provide the best incentives to innovators in areas such as 5G.
More also needs to be done to ensure that Chinese implementer companies do not holdout on taking a license to innovators’ patent portfolios. This year I have been encouraged by moves by the European Commission to take action against the aggressive use of anti-suit injunctions (ASI) by some OEMs in the smartphone space, including several from China.
The Commission is pursuing a case at the WTO to investigate the issuance of these ASIs which are designed to prevent parallel cases in an SEP licensing dispute from being heard by courts in the U.S. and Europe. ASIs are not a new legal tactic, but their most recent incarnation represents an aggressive form of over-reach which the Commission is right to target.
While Europe’s lead on ASIs is welcome, I have been alarmed by the direction that the EU appears to be taking in other areas in relation to SEPs. After a public consultation earlier this year on various matters related to SEPs, the rumors out of Brussels are that policymakers are considering asking innovators to conduct overly burdensome essentiality checks on the SEPs in their portfolios. This would add an incredible amount of time and money to companies and research organizations who are already often out-gunned financially by implementer companies and would potentially give those holding-out on taking a license yet another means of delaying in paying up for the technology they use.
If the Commission is set on this course, then I want to be very clear that it cannot only be the innovators who have to take on this burden and any essentiality checking system cannot be open to abuse by implementer companies. Additionally, if the Commission pursues this policy, safeguards must be put in place to guard against patent holdout by implementer companies. European courts have led the way recently in highlighting the problem of holdout while the continent’s innovators have played a central role for decades in advancing connectivity. The EU must not now shoot itself in the foot over poorly designed policy.
Keeping a very close eye on the direction that Europe takes on SEPs is at the top of my priority list in 2023 as standardized technologies are only becoming more valuable as we see more and more sophisticated levels of connectivity implemented across a growing number of industries. The stakes are once again high as policymakers ring in the new year.
Now, if I had one wish for 2023 (apart from the Washington Capitals winning another Stanley Cup), it would be that those in power recognize the immense value of strong patent rights and how strong patent rights incentivize and enable innovators to build on the technologies that have come before them. The kind of foundational research that engineers at InterDigital and elsewhere engage in is painstaking work and takes years to pay off. Appropriate protection for our innovation provides us with some guarantee that we can continue to invest in our engineers and help drive a new era in connectivity.
That’s worth remembering no matter where you sit on the political spectrum.