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Sept 28 -- Comment period extended to November 6, 2023. https://www.federalregister.gov/d/2023-20919
Sept 11 -- The International Trade Administration (ITA), the National Institute of Standards and Technology (NIST), and the U.S. Patent and Trademark Office (USPTO) (“the Agencies”) are seeking stakeholder input on the current state of U.S. firm participation in standard setting, and the ability of U.S. industry to readily adopt standards to grow and compete, especially as that relates to the standardization of critical and emerging technologies.

The public listening session will be held on Wednesday, September 20, 2023, from 1 to 5 p.m. ET. Persons seeking to speak at the listening session must attend in person and register by 5 p.m. on September 13, 2023. Persons seeking to attend, either in person or virtually but not speak at the event, must register by September 18, 2023. Seating is limited for in-person attendance. Written comments will be accepted until September 29, 2023.

On May 4, 2023, the White House released the United States Government National Standards Strategy for Critical and Emerging Technology (“the Strategy”). The Strategy calls for a whole of government approach to reinvigorate our rules-based and private sector-led approach to standards development. The Strategy seeks to prioritize efforts for standards development that are essential for U.S. competitiveness and national security including communication and networking technologies, semiconductors and microelectronics, artificial intelligence and machine learning, biotechnologies, clean energy, and quantum information technologies, to name a few. The Strategy highlights the importance of widely adopted standards as they facilitate access and growth in new markets and support new market entrants.

As a means to achieve increased U.S. private and public engagement with standard development organizations, the Strategy identifies the following four objectives: (1) investment, (2) participation, (3) workforce, and (4) integrity and inclusivity. Each objective is accompanied by particular lines of effort, such as helping to remove and prevent barriers to private sector participation in standard development, improving communications between public and private sectors on standards, and educating and empowering the new standards workforce.

Pursuant to a Request for Information on Implementation of the United States Government National Standards Strategy for Critical and Emerging Technology, Docket No. NIST–2023–0005 (https://www.federalregister.gov/​d/​2023-19245), the Agencies are seeking feedback on issues that stakeholders face at the intersection of standards and intellectual property, especially small and medium enterprises (SMEs). SMEs are encouraged to self-identify in their comment submissions. The listening session and stakeholder feedback received will be used to narrow the scope of future collaborative efforts between the Agencies and with stakeholders.
The purpose of this listening session and request for comments is to obtain public input on areas for ITA–NIST–USPTO collaboration and engagement related to the Strategy. We are seeking feedback from a broad group of stakeholders, including, but not limited to, private sector companies, standards bodies and entities that participate in them, licensors and licensees of standardized technologies, academia and the general public. To facilitate stakeholder feedback, questions are provided below. These questions are not meant to be exhaustive, and stakeholders are encouraged to address these and/or other related issues and to submit research and data that inform their comments on these topics. Responses to these questions may result in the need for additional workshops, hack-a-thons, or events to solve the identified challenges.
ITA, NIST, and the USPTO invite written responses from the public to the following questions:

1. Do the intellectual property rights policies of foreign jurisdictions threaten any of U.S. leadership in international standard setting, U.S. participation in international standard setting, and/or the growth of U.S. SMEs that rely on the ability to readily license standard essential patents?

2. If responding affirmatively to question 1, what can the Department of Commerce do to mitigate the effects of any adverse foreign policies relating to intellectual property rights and standards? Please clearly identify any such adverse foreign policies with specificity.

3. What more can other entities do, such as standards development organizations, industry or consumer associations, academia, or U.S. businesses to help improve American leadership, participation in international standard setting, and/or increased participation of small to medium-sized enterprises that rely on the ability to readily license standard essential patents?

4. Are current fair, reasonable, and non-discriminatory (FRAND) licensing practices adequate to sustain U.S. innovation and global competitiveness? Are there other international models which would better serve U.S. innovation in the future?

5. Are there specific U.S. intellectual property laws or policies that inhibit participation in standards development?

6. Are there specific U.S. intellectual property laws or policies that inhibit growth of SMEs that rely on licensing and implementing standards?

7. Which, if any, actions would be advisable for the Department of Commerce to further explore regarding the interplay of intellectual property and standards, including but not limited to:

a. educational guidance to SMEs to become more involved in standards;
b. recommendations for standards development organizations regarding intellectual property policies and enforcement thereof;
c. a database of judicially determined or otherwise voluntarily-made-public licensing rates for technologies covered by a FRAND commitment; and
d. other voluntary and/or public disclosures?

8. How can the Department of Commerce reinforce the importance of IP-based incentives for participation in international technology standards development, especially around critical and emerging technologies?

9. What can the Department of Commerce do to mitigate emergence or facilitate the resolution of FRAND licensing disputes? Can requiring further transparency concerning patent ownership make standard essential patent (SEP) licensing more efficient? What are other impediments to reaching a FRAND license that the Department of Commerce could address through policy or regulation?

10. Are there steps that the Department of Commerce can take regarding intellectual property rights policy that will help advance U.S. leadership in standards development and implementation for critical and emerging technologies?

11. Do policy solutions that would require SEP holders to agree collectively on rates or have parties rely on joint negotiation to reach FRAND license agreements with SEP holders create legal risks? Are there other concerns with these solutions?

12. What can the Department of Commerce do to help facilitate the efficient resolution of FRAND disputes? What can the Department of Commerce do with the World Intellectual Property Organization and/or standard setting bodies to promote alternative dispute resolution to more efficiently resolve FRAND disputes?

National Standards Strategy for Critical and Emerging Technology: https://www.whitehouse.gov/wp-content/uploads/2023/05/US-Gov-National-Standards-Strategy-2023.pdf
NIST RFI on Strategy Implementation: https://www.federalregister.gov/d/2023-19245
USPTO Public listening session: Innovating ideas on standards and intellectual property: https://www.uspto.gov/about-us/events/public-listening-session-innovating-ideas-standards-and-intellectual-property
FRN: https://www.federalregister.gov/d/2023-19667

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