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Out of the Murky Lagoon and Into...Is There a Emerging Consistent US Government Policy on Standard Essential Patents (SEPs)?

In January 2013, the USDOJ and USPTO issued a Policy Statement on remedies for Standard Essential Patents (SEPs) which concluded, that while an Section 337 exclusion order issued by the US International Trade Commission (ITC) for infringement of encumbered SEPs may be appropriate in some circumstances, “depending on the facts of individual cases, the public interest may preclude the issuance of an exclusion order in cases where the infringer is acting within the scope of the patent holder’s F/RAND commitment and is able, and has not refused, to license on F/RAND terms.” Contemporaneously, the FTC entered into a settlement with Google which defined what constitutes an SEP and demarcates specific steps to determine what is, in fact, an unwilling licensee, proscribing unilateral action by the SEP holder seeking damages or injunctions. Together, these action bring some order to what has been a murky area in telecommunications standards. But, unlike the FTC in its settlement agreement, the USDOJ/PTO Policy Statement, went further, evidencing what appears to be an overreaching regarding U.S. Government (USG) policy on voluntary industry standards (and how patents relate to them), even though the factual situations arose in the peculiar industry of telecommunications. This paper explains how that sector differs from others, focusing especially on standards for software, Internet and Web fields, analyzes the risk (and inconsistency with other USG policies) for assuming that there is one approach for how patents are treated in standardization activities across all sectors, and outlines next step considerations for policy makers.