Friday, October 4, 2019

Carrier Responds to Iancu

Last December, U.S. Antitrust Division chief Makan Delrahim announced that the DOJ was withdrawing its assent to the USDOJ/USPTO 2013 Policy Statement on Remedies for the Standards-Essential Patents Subject to Voluntary F/RAND Commitments.  (For previous coverage on this blog, see here and here.)  The USPTO is still studying the matter, according to a recent speech USPTO Director Andre Iancu gave at the Solvay Institute in Brussels.  (For previous mention on this blog, see here.) Yesterday Professor Michael Carrier published an expert analysis in Law360 titled Answer To Iancu's SEP Policy Call Is In Plain Sight (available here, behind a paywall).  Professor Carrier rightly notes that the "balance" Director Iancu says is necessary, between encouraging innovation and discouraging abuses on the part of patent owners, is already built into the Policy Statement--an observation with which I agree, as stated for example in this piece published shortly after Mr. Delrahim's announcement last December.  Or, as Professor Carrier puts it, "Iancu is reasonably looking for a balanced and structured approach to standard essential patents that relies on good faith on both sides and disincentivizes holdup and holdout.  That answer is lying right in front of him: the 2013 PTO/DOJ Statement." 

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