There are policy areas in which the European Union cannot vigorously defend the EU economy's interests without some transatlantic antagonism. Subsidies are an example. Standard-essential patents (SEPs) are not. Much to the contrary, a couple of major European SEP holders generate very significant revenues from licensees based in the United States.
But the EU's proposed SEP regulation is so fundamentally flawed that voices of reason from outside the EU are needed. One of them is the UK IPO with its very careful approach. Another example is the Biden Administration, and I just can't see why an initiative that harms European SEP holders is worth a rift between the EU and the United States.
Almost three months ago I reported on U.S. Secretary of Commerce Gina M. Raimondo having said at a Senate hearing that the U.S. government has officially commited "concerns" over the proposal to the European Commission. Yesterday (Wednesday, July 26) the Senate's Subcommittee on Intellectual Property (chairman: Sen. Chris Coons (D-Del.)) held a USPTO oversight hearing, toward the end of which the following was said:
SENATOR COONS: This is my last question. ... I've been following with genuine concern recent proposed regulations by the European Union for what would essentially be an SEP rate court. That regulation, I'm concerned, validates China's practices ... and I had shared those concerns ... and [Secretary Raimondo] agreed the proposal is problematic. What steps has the USPTO taken to communicate concerns to our European colleagues and what steps do you think the Administration can and should take to guard against restrictions on SEP licensing in the EU and globally?
DIRECTOR VIDAL: As I mentioned in my opening remarks, that's one of the things that I'm keenly focused on: it's standards, because I think it's critical to our economy. I will say that when we withdrew the 2019 policy statement around SEPs with NIST and DOJ, it was because we see standards as an international issue that individual countries weighing in in these ways could be extremely problematic. So what we've done when it comes to the EU directorate is I've met with the EUIPO in Geneva [presumably a WTO/WIPO meeting] just a week and a half ago. I've also spoken to other stakeholders in Europe about this. We also are issuing soon an FR notice, a Federal Register notice, to seek feedback from U.S. stakeholders on international SEP policy so that we can inform an all-of-government approach. That's gonna be not just the USPTO. I'm doing that with NIST, our standards and technology group, and ITA, our international group within [the Department of] Commerce, so that we can get an all-of-government approach that's data-driven by feedback.
