Comments Filed in Response to Agencies’ Request for Input on SEP Licensing

I mentioned back in September that the U.S. International Trade Administration (ITA), the National Institute of Standards and Technology (NIST), and the USPTO had published a notice, titled "Joint ITA-NIST-USPTO Collaboration Initiative Regarding Standards; Notice of Public Listening Session and Request for Comments," in which they stated they were "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 notice also included a list of twelve questions, which I quoted on this blog, which they suggested commenters might wish to discuss.  The agencies held a listening session on September 20 and originally stated that they would accept public comments until September 29; the deadline was later extended to November 6.

Here is a link to the page hosting the 57 comments submitted.  I have had a busy month, and haven’t read very many of these myself yet.  Law360 published an article earlier this month, however, summarizing and linking to some of the comments from tech companies and others.  As that article discusses, Dell Technologies' comment makes an argument that mirrors one that Mr. Justice Mellor made in InterDigital v. Lenovo (see my blog post here), and that I have previously made in another blog post myself, namely that the lack of transparency regarding FRAND royalty rates that licensors charge makes it very difficult to know whether the “nondiscriminatory” aspect of FRAND is being satisfied. 

Also on Law360 in October was an article by David McAdams and David Katz, titled Why US Should Help European Efforts to Fix SEP Licensing.  Whether one agrees with that premise or not (relating to the European Commission’s draft SEP regulation--and while I'm thinking of it, Enrico Bonadio and Shreya Sampathkumar have an interesting post up today on the Kluwer Patent Blog, titled Countering Criticisms to the Proposed EU SEPs Regulation), there is an interesting argument about how SEP licensing may function as a market for “lemons” (referring to Nobel laureate George Akerlof’s famous paper on that subject), given the asymmetric information vis-à-vis licensors and licensees regarding “the quality of SEP portfolios.”  That’s an angle that had not previously occurred to me in quite that fashion.