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US Signals Return to Active SEP Approach with Eye Toward Europe

October 1, 2023

In June 2022, the Biden administration withdrew a 2019 policy endorsing injunctions in litigation over fair, reasonable, and nondiscriminatory (FRAND) licensing without replacing it, instead adopting a case-by-case approach to disputes over standard essential patents (SEPs). However, the administration has recently signaled a return toward a more active, “whole of government approach” toward SEP issues, starting with the May announcement of a national strategy to encourage US participation in standards development. Now, after eyeing a controversial proposal for an EU-wide SEP licensing and enforcement framework with increasing concern, the administration has asked stakeholders for their take on what additional policies would best serve the US FRAND licensing ecosystem relative to those of other jurisdictions, as well as those that would incentivize US companies to participate in the standard-setting process. Feedback at a September 20 multi-agency listening session, after which the government extended a related deadline for comments, reflected a lack of consensus on these and other issues, including the proper role of injunctive relief.


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