Standard-Essential Patents: An Increasingly Contentious Issue At The U.S. International Trade Commission

The increasing popularity and complexity of electronic devices has led to a corresponding increase in standard-setting organizations (“SSOs”), which allow industry participants to decide on technology standards for devices in a given field. Standards, however, are often covered by patents owned by various members of the organization. SSOs, therefore, typically require that the owners of patents license those patents according to fair, reasonable, and non-discriminatory (“FRAND”) terms. Legal issues have arisen in recent years regarding the appropriate treatment of express or implied obligations contained in FRAND agreements. Specifically, there is concern that the ability to seek exclusionary relief on standard-essential patents at the International Trade Commission (“ITC” or “Commission”) will jeopardize the SSO system, with negative effects on competition and consumer welfare. This legal note addresses how the International Trade Commission (ITC) has treated patents that are essential to practice industry standards and provides general considerations for how these issues may be addressed in the future.

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