Yesterday the United States Patent Office, the Antitrust Division of the Department of Justice, and the National Institute of Standards and Technology issued a new Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments. This statement replaces the USDOJ/USPTO 2013 Policy Statement on Remedies for the Standards-Essential Patents Subject to Voluntary F/RAND Commitments, which I previously blogged about several times (see, e.g., here and here). From the new statement (pp. 4-5):
As a general matter, to help reduce the costs and other burdens associated with litigation, we encourage both standards-essential patent owners and potential licensees of standards essential patents to engage in good-faith negotiations to reach F/RAND license terms. All remedies available under national law, including injunctive relief and adequate damages, should be available for infringement of standards-essential patents subject to a F/RAND commitment, if the facts of a given case warrant them. Consistent with the prevailing law and depending on the facts and forum, the remedies that may apply in a given patent case include injunctive relief, reasonable royalties, lost profits, enhanced damages for willful infringement, and exclusion orders issued by the U.S. International Trade Commission. . . . These remedies are equally available in patent litigation involving standards-essential patents. . . . While the existence of F/RAND or similar commitments, and conduct of the parties, are relevant and may inform the determination of appropriate remedies . . . the general framework for deciding these issues remains the same as in other patent cases.
My initial reaction is that, while there was nothing in the 2013 Policy Statement that needed correcting, the revised statement isn't as bad as I feared it might be. But I need to digest this further, and will be back with further commentary sometime before or after the holidays.
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