Warns Commerce from backing off SEP Joint Policy Statement

ACT|The App Association, Apple and others representing $100 billion in R&D are calling on the Department of Commerce not to withdraw U.S. support from a 2013 Joint Policy Statement on standard essential patents (SEP). The Department of Justice withdrew at the beginning of the year.

That came in a letter to Commerce Secretary Wilbur Ross and Andrei Iancu, head of the Patent and Trademark Office.

Standards essential patents are ones for technologies that are essential for the functioning of a baseline technology, like Qualcomm chips in smart phones.

Apple and The App Association said the 2013 statement "fully allows for appropriate monetary remedies if patent infringement is proven, while also recognizing appropriate limits for exclusionary relief when the SEP owner has instead promised to grant fair, reasonable, and nondiscriminatory (FRAND) licenses."

Stepping back from that statement could hurt the rollout of 5G, chill the development of connected devices, and more, they say.

Commerce has said that the “presence or absence of good faith during negotiations can be a factor in the setting of remedies for infringement of FRAND-encumbered SEPs." But Apple and company say that, as the 2013 statement recognizes, SEP injunctions can disrupt commerce and product development, so it should be tough to get an injunction.

"Any guidance that focuses on negotiation conduct without also expressly recognizing that the key factors weigh against SEP injunctions would both fail to faithfully reflect U.S. law and constitute poor innovation policy."