Opinions and Editorials

Nov. 3, 2021

RealClearPolicy: Biden Administration Should Preserve Strong Patent Protection for Standardized Technology by David J. Kappos & Andrei Iancu

A looming review of U.S. policy for patents covering standardized technologies such as cellphone communication shines a spotlight on an arcane but consequential area of law at a time when the technology innovation it fosters is a vital pillar of economic and national security.

The risks of getting this issue wrong are significant, yet recent hints from the Biden administration suggest a system with a long history of promoting innovation and consumer welfare is in jeopardy, not because it’s causing problems but because these standard-essential patents (SEPs) are the perpetual bogeyman of the intellectual property world.

President Biden has tasked the Attorney General and Secretary of Commerce with revisiting a 2019 Policy Statement that maintained the rights of SEP owners to the same legal remedies U.S. law provides for the infringement of other patents. This policy statement, from the Department of Justice, the U.S. Patent and Trademark Office, and the National Institute of Standards and Technology, was itself a clarification of a 2013 policy statement. Both documents were intended to make clear that if an SEP is infringed — if someone essentially steals the invention and intellectual property covered by such a patent — the patent owner doesn’t lose the right to ask a court to halt infringement simply because the patented technology is important enough to be included in a standard.

As directors of the USPTO under Democratic and Republican administrations who played a role in formulating these two policy statements, we want to emphasize that the 2019 Policy Statement is not a Republican policy or Democratic policy; it’s not a policy favoring innovators or the companies that implement such innovations into their products. It’s a balanced approach designed to encourage and support American innovation in standards-based technologies, precisely to increase competition and prevent economic consolidation. To advance the goals of President Biden’s Executive Order on Promoting Competition in the American Economy, the Administration should preserve the 2019 Policy Statement.