Mass Law Blog

Biden Administration Signals Reversal Of Delrahim Position on Standard Essential Patents

by | Jul 14, 2021

Nestled within the Biden administration’s recent, sweeping Executive Order on Promoting Competition in the American Economy is a small, rather oblique paragraph that has garnered little attention to date. Appearing as Section 5(d), it urges the Attorney General and the Secretary of Commerce to “consider whether to revise their position on the intersection of the intellectual property and antitrust laws,” in order to “avoid the potential for anticompetitive extension of market power beyond the scope of granted patents, and to protect standard-setting processes from abuse…” And specifically, to revisit a position taken in 2019 by three agencies they supervise – the Department of Justice (DOJ), Patent and Trademark Office (PTO) and National Institute of Standards and Technology (NIST).

This short statement signals a significant shift in policy on the proper balance between the rights of the owners of patents that would be “necessarily infringed” by the implementation of a standard and the rights of those buildings product that comply with a standard. Its importance to the administration is evidenced by the fact that presidents before Donald Trump rarely made public requests of the DOJ.

. . . continue reading on Andy Updegrove’s blog,