On Monday, the U.S. International Trade Administration (ITA), the National Institute of Standards and Technology (NIST), and the USPTO published a notice in the Federal Register titled "Joint ITA-NIST-USPTO Collaboration Initiative Regarding Standards; Notice of Public Listening Session and Request for Comments." These agencies state that they "are seeking stakeholder input on the current state of U.S. firm participation in standard setting, and the ability of U.S. industry to readily adopt standards to grow and compete, especially as that relates to the standardization of critical and emerging technologies." The will hold a public listening session on Wednesday, September 20, 2023, from 1 to 5 p.m. ET. The notice includes instructions on how to request a slot to speak (in person) or attend (virtually or in person). The agencies list twelve questions that respondents may address, although they also state that respondents "may address additional related topics that implicate the intersection of standards and intellectual property rights." Here are the twelve listed questions:
1. Do the intellectual property rights policies of foreign jurisdictions threaten any of U.S. leadership in international standard setting, U.S. participation in international standard setting, and/or the growth of U.S. SMEs that rely on the ability to readily license standard essential patents?
2. If responding affirmatively to question 1, what can the Department of Commerce do to mitigate the effects of any adverse foreign policies relating to intellectual property rights and standards? Please clearly identify any such adverse foreign policies with specificity.
3. What more can other entities do, such as standards development organizations, industry or consumer associations, academia, or U.S. businesses to help improve American leadership, participation in international standard setting, and/or increased participation of small to medium-sized enterprises that rely on the ability to readily license standard essential patents?
4. Are current fair, reasonable, and non-discriminatory (FRAND) licensing practices adequate to sustain U.S. innovation and global competitiveness? Are there other international models which would better serve U.S. innovation in the future?
5. Are there specific U.S. intellectual property laws or policies that inhibit participation in standards development?
6. Are there specific U.S. intellectual property laws or policies that inhibit growth of SMEs that rely on licensing and implementing standards?
7. Which, if any, actions would be advisable for the Department of Commerce to further explore regarding the interplay of intellectual property and standards, including but not limited to:
a. educational guidance to SMEs to become more involved in standards;
b. recommendations for standards development organizations regarding intellectual property policies and enforcement thereof;
c. a database of judicially determined or otherwise voluntarily-made-public licensing rates for technologies covered by a FRAND commitment; and
d. other voluntary and/or public disclosures?
8. How can the Department of Commerce reinforce the importance of IP-based incentives for participation in international technology standards development, especially around critical and emerging technologies?
9. What can the Department of Commerce do to mitigate emergence or facilitate the resolution of FRAND licensing disputes? Can requiring further transparency concerning patent ownership make standard essential patent (SEP) licensing more efficient? What are other impediments to reaching a FRAND license that the Department of Commerce could address through policy or regulation?
10. Are there steps that the Department of Commerce can take regarding intellectual property rights policy that will help advance U.S. leadership in standards development and implementation for critical and emerging technologies?
11. Do policy solutions that would require SEP holders to agree collectively on rates or have parties rely on joint negotiation to reach FRAND license agreements with SEP holders create legal risks? Are there other concerns with these solutions?
12. What can the Department of Commerce do to help facilitate the efficient resolution of FRAND disputes? What can the Department of Commerce do with the World Intellectual Property Organization and/or standard setting bodies to promote alternative dispute resolution to more efficiently resolve FRAND disputes?
Hat tip to Adam Lidgett on Law360 for calling this to my attention.
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