Anyone who has observed standard essential patents (SEPs) for any length of time knows quite well that behind all the legalese there is a heavy dose of politics – both foreign and domestic. Thus, it came as no surprise that with a new administration the foes of the prior administration’s New Madison approach to SEP license would, at least, try behind the scenes to make their move. Indeed, last week, the US Department of Justice proposed, yet another approach to SEPs, purporting to represent the joint views of the USPTO and NIST – despite the fact that the Director of the USPTO was nominated and had her hearing but was not yet confirmed and NIST’s senior leadership is either unconfirmed or working in an acting capacity. Moreover, the US Department of Justice gave the public only 30 days to comment. This seemed like either a cruel joke to ruin the holidays of people who care about SEPs or an intentional attempt to stifle comment by any but the most robust lobbying organizations (readers of this blog should be able to guess who they might be….).
The attempted skullduggery becomes even more apparent when compared to the U.K. government, which issued a very similar call for comment within hours of the DOJ, but gave a three month comment period. Luckily Senator Tillis was paying attention and wrote to the DOJ on December 10 voicing his concerns both about the shortened time for comment and that the other two agencies (NIST and the USPTO) “lack confirmed leadership.” Thankfully, I am pleased to report that the DOJ – JUST NOW – has extended the deadline to comment to a much more reasonable February 4, 2022. Hopefully this gives all interested parties time to reasonably and productively provide comments.