Comment on 2021 DOJ-USPTO-NIST Draft Policy Statement

Abstract

This paper is a succinct response to the request for comments regarding the 2021 draft SEP policy statement by DOJ, USPTO, and NIST. I have tried to summarize several key insights from my previous research and policy experience that form the foundation for understanding SEP-enabled standards and SEP policymaking, including:

1. SEP-enabled standards have produced market successes, not market failures
2. Why injunctions do not create patent holdup in the SEP licensing context
3. Without injunctions, SEP licensors are in the weaker bargaining position
4. Is there a need for a DOJ-USPTO-NIST SEP policy statement?

Keywords: Standards, patents, injunction, patent holdup, paten holdout, SEP

JEL Classification: L15, L24, K21, O31, O34