The Debate Over Standard Essential Patents

Standardized technologies make it possible for devices and equipment to have common components so, for instance, a pair of headphones can plug into any headphone jack. These technologies are often developed through expensive and timely research so many of them are protected by standard essential patents (SEPs). This type of patent allows the holder to retain rights to the new technology while also charging a reasonable fee for others to utilize the invention. In 2013, the Department of Justice and the US Patent and Trademark Office announced that SEPs posed a threat to competition and should not have the same protections as other types of patents. In 2019, however, the Department of Justice, the US Patent and Trademark Office, now joined by the National Institute of Standards and Technology, revised that policy, urging that SEPs be treated the same as other types of patents.  In 2022, the Biden administration rescinded the 2019 policy without issuing a new policy statement. Instead, it announced that agencies should apply the same general laws to SEPs that apply to all other property rights. Will this spur or reduce technological innovation?

Brian O’Shaughnessy is the Senior Vice President for Public Policy at the Licensing Executives Society (LES) of the United States and Canada. Any expressed opinion in this video is his own, and not attributable to LES.

Brian O’Shaughnessy

Partner, Dinsmore & Shohl LLP and

Past President, Licensing Executives Society, USA & Canada

Intellectual Property

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at [email protected].

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