Biden Administration Releases Draft Of SEP Policy Revamp

The Biden administration has revealed new details on its revamped policy toward standard essential patent (SEP) licensing. On December 6, the US Department of Justice (DOJ), the National Institute of Standards and Technology (NIST), and the USPTO released a draft joint policy statement for public comment that lays out its posture toward remedies and licensing negotiations in SEP disputes. The statement walks back certain key aspects of a prior joint policy statement released by those same agencies in December 2019 under previous leadership. Perhaps most notably, the new proposal asserts that injunctions should not be issued in SEP cases when monetary damages are available—whereas the 2019 statement argued in favor of such injunctive relief. However, the draft policy also includes recommendations related to alleged implementer misconduct, building on prior statements from DOJ officials favoring a policy that balances the interests of both licensors and licensees.