Six months after the Department of Justice (“DOJ”),
United States Patent and Trademark Office (“USPTO”),
and the National Institute of Standards and Technology
(“NIST”) issued a Draft Policy Statement on Licensing
Negotiations and Remedies for Standards-Essential Patents Subject
to Voluntary F/RAND Commitments, the agencies have yet to issue a
final statement, and have been silent as to whether or when such a
statement may issue.1 The 2021 Draft quickly attracted
substantial criticism and has not been included in recent agency
updates and speeches.
Following a 2019 Policy Statement which emphasized that owners
of standard-essential patents (“SEPs”) may freely seek,
and courts may appropriately order, injunctive relief for
SEP-infringing products, the 2021 Draft purports to clarify that
injunctive relief will seldom be the appropriate
remedy.2 This article addresses the 2021 Draft and
provides a primer on standards, SEPs, Standards Setting
Organizations (“SSOs”), and
