Saturday, July 10, 2021

President Biden calls on DOJ and USPTO to revise standard-essential patent policies, disregarding Trump antitrust chief Delrahim's call for "regulatory humility"

Last month, a has-been desperately tried to preserve his legacy: Makan Delrahim, the Antitrust Assistant Attorney General (Antitrust AAG) under fromer president Trump, called for "regulatory humility" in the face of court rulings. He had seen the writing on the wall in the spring, when his former agency, the DOJ, downgraded his letter to the IEEE, and he had correctly interpreted a statement by a Biden Administration official that Mr. Delrahim's decisions were going to be undone.

By the way, Mr. Delrahim repeatedly and consistently talked about "the FRAND" at that Concurrences conference. That reminded me of George W. Bush's aspirations to use "the Google" on "the internets." I've been following the FRAND debate for well over a decade, but Mr. Delrahim is to my knowledge the only one ever to have said "the FRAND." Maybe there's one FRAND (and one Google) per internet...

Mr. Delrahim is not "the FRAND", nor a friend of FRAND. He's basically "the anti-FRAND."

The Biden Administration is not inclined to heed Mr. Delrahim's unsolicited advice. Sec. 5(d) of yesterday's Executive Order (EO) on Promoting Competition in the American Economy calls on the DOJ and (via the Secretary of Commerce) the USPTO to return to their Obama-era SEP policies:

"(d) To avoid the potential for anticompetitive extension of market power beyond the scope of granted patents, and to protect standard-setting processes from abuse, the Attorney General and the Secretary of Commerce are encouraged to consider whether to revise their position on the intersection of the intellectual property and antitrust laws, including by considering whether to revise the Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments issued jointly by the Department of Justice, the United States Patent and Trademark Office, and the National Institute of Standards and Technology on December 19, 2019."

The EO formally just suggests "[re-]considering" the joint policy statement of DOJ, USPTO and NIST on SEPs. In the Obama years, a balanced statement by the three agencies was in place. Then came Messrs. Delrahim and Iancu (Trump's USPTO Director and now--again--a patent litigator mostly representing non-practicing entities). But the first part of that passage clearly warns against overleveraging of SEPs and overcompensation of SEP holders, as well as against patent abuse.

U.S. and EU SEP enforcement policies are more divergent than ever. In the early to mid 2010s, the world's two largest markets were almost in lockstep, with competition authorities on both sides of the Atlantic taking action against the likes of Samsung and Motorola Mobility. Samsung is now very much in favor of FRAND, and Motorola Mobility was acquired by Lenovo, to which this applies as well. But back then, they were big-time SEP abusers. More recently, however, the European Commission has been very reluctant to go after those aggressively enforcing their SEPs (such as in Nokia v. Daimler), and in Germany, where majority of all European patent infringement cases are filed, the case law strongly favors SEP holders' access to injunctive relief now. This also includes the Munich court's new "local dish": anti-antisuit injunctions. There is no hope that the situation in the EU will change in implementers' favor anytime soon. Even in the most important non-EU European jurisdiction, the UK, SEP holders get far greater leverage than in the United States. Plaintiffs will instinctively follow the money.

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