Even as bipartisan support grows in Congress for legislation aimed at curbing the economic power of Big Tech, the Biden Administration’s Department of Justice, with tacit support from the U.S. Patent & Trademark Office (USPTO) and the National Institute of Standards and Technology (NIST), is trying to push through a shift in policy that would increase significantly the ability of those same technology giants to thwart competition from smaller innovators and competitors. This bizarre anomaly came at a time when there was not even a Senate-confirmed leader at USPTO or NIST, suggesting that the real push may be coming from the White House and is more about politics than substance.
The proposed directive would implement a policy, long-sought by Big Tech, limiting the legal tools available to competitors to enforce their intellectual property. It first appeared as part of an Executive Order signed last July, at a time when none of the three agencies had a confirmed leader, and has been further advanced in a recently published request for comments on a so-called “policy statement” intended to govern negotiations between private companies about royalties that inventors can request for the use of patents on inventions they contribute to industry collaboration groups that define “standards.” These are often referred to as “standard essential patents” or SEPs. The administration’s proposal would make it nearly impossible for companies whose patents are part of these standards to seek an injunction when competitors infringe them. The outcome of this new policy directive would be to allow some of the largest companies in the world — particularly Big Tech companies — to more freely infringe SEPs from innovative startups.
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