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Comments on the Joint ITA-NIST-USPTO Collaboration Initiative Regarding Standards

November 6, 2023


Introduction and Summary. 1

SEPs, Intellectual Property, and the Geopolitical Competition for Innovation Advantage. 3

SEPs as Another Point of Conflict in the Geopolitical Battle Over Technology. 5

Europe’s SEP Proposal Provides an Opening for China to Replicate and Repurpose It for Industrial Policy. 6

Chinese Intellectual Property Data Tells Us About Potential Discriminatory Treatment Under a New Centralized, Top-Down SEP Mechanism.. 8

China’s Weaponization of Anti-Suit Injunctions Is Instructive for What Will Likely Happen With a Centralized and Top-Down SEP Rate-Setting Mechanism.. 9

Conclusion: Don’t Provide Cover for China to Create a New Tool for Industrial Policy. 10

Endnotes. 11

Introduction and Summary

The Information Technology and Innovation Foundation (ITIF) appreciates the opportunity to comment on the joint collaboration initiative between then International Trade Administration (ITA), the National Institute of Standards and Technology (NIST), and the United States Patent and Trademark Office (USPTO) regarding standards and intellectual property (IP).[1] The request for information includes questions about how the IP rights policies of foreign jurisdictions that threaten U.S. leadership in international standard setting. ITIF understands that the three agencies are interested in analysis on the geopolitical and policy implications of the European Union’s (EU’s) recent standards essential patents (SEP) reform proposal, including the ripple effect it will have in China.[2] ITIF’s submission focuses on China, given how likely it is that China will repurpose the EU’s SEP proposal as another legal tool in its already-extensive protectionist industrial policy toolkit. The Biden administration (and the EU) need to carefully protect the role that patents and SEPs play in their respective ability to innovate and compete with China.

U.S. leadership in advanced technologies depends in no small part on standardized technologies, which depends on research and development (R&D) that is financed largely through patent licensing. An SEP is a patent that is volunteered to be part of a technology/industry standard. SEPs combine the innovativeness of patents with the diffusion power of standards.[3] In declaring their patent as ‘essential,’ patent-holders make their patent available to a larger market. These firms basically trade their patents’ exclusivity for a higher volume of uptake and potential royalty payments. Standard setting organizations (SSOs) are essentially the depository for SEPs. From this, the inventions can be licensed within the industry under fair, reasonable, and nondiscriminatory (FRAND) terms. Licensing allows competitors to innovate with the SEP, rather than around it, allowing the SEP to be adopted throughout an industry. If another company wants to use that technology, they must license that patent (unless the SEP holder agrees to waive that requirement).

SEPs are especially important to mobile and digital connectivity. For example, the 5G standard for cellular telecommunications encompasses around 25,000 SEPs owned by hundreds of patent holders. This is why most SEP holders offer a single license for a given SEP portfolio (instead of offering licenses on a per-SEP basis). This is also why SSO’s coordination role is so important. A contributing factor to growing country-by-country court battles between firms over SEPs, and policymaker’s increasing focus on SEPs, is that more devices are digitally connected and thus touch on SEPs, especially in regard to connected and autonomous vehicles.

The market for SEPs is international, so the United States (and others, like the EU) need to be mindful of how their IP policies relate to and impact other countries and keep an eye on what others are doing given it spills back over. The rules governing SEPs need to have a stronger international orientation.[4] This is why the United States needs to keep focused on the global landscape for IP, as U.S. innovation depends on what happens in global markets to support R&D in the United States. The United States is home to many major telecommunication SEP holders, while many SEP implementers are in China, like Huawei. This R&D and the associated technologies are also foundational to supporting U.S. leadership in technical standards development, which is clearly a Biden administrative objective.

Foreign governments, including China, have long attempted to regulate royalties for SEPs to reduce costs for their domestic companies, reduce revenues for U.S. innovators, and otherwise benefit local firms and products. U.S. patent law has long recognized the principle that licensing royalties established through free negotiation between parties is the best indicator of the inventor’s fair compensation. The EU SEP proposal may impact the royalties foreign firms earn in Europewhich is bad enoughbut more importantly, it provides another tool China could misuse to reduce or eliminate the role and cost of using U.S. and other foreign technologies. Unfortunately, the EU regulation essentially invites China to increase their own regulation of—and control over—SEPs.

The European Union appears willfully blind to these implications and the impact on its own advanced technology firms. In a press conference on the EU SEP proposal, European Commissioner Thierry Breton stated that “we welcome anyone outside of Europe to apply rules to be more transparent, predictable, and fair, but being very diplomatic, I think it’s not the case around the planet yet.[5] So yes, I think it would be good for others to apply the same rule and of course consolidation than anything else… But we have the feeling that what is applied in Europe could be well applied outside.” European policymakers should be wary of adding discriminatory SEP assessments to its protectionist industrial development toolkit. The net effect on Europe could be negative as China may use its SEP system to impose artificially low and binding (rather than non-binding) royalty rates for European SEPs, which would undermine European innovation more than what it may gain through its own discriminatory system. Either way, allowing the EU and China to inject protectionist-driven industrial policy into the setting of licensing rates poses a strategic threat to many advanced U.S. tech firms. Ultimately, any path toward government-directed SEP rate regulation benefits China.

SEPs, Intellectual Property, and the Geopolitical Competition for Innovation Advantage

Many advanced technology firms depend on royalties from patent licensing, especially those part of SEPs that form the basis for an industry standard such as Wi-Fi and 5G, to fund further innovation. The stakes for these firms are high: billions of dollars, market share, and revenue to reinvest in R&D. This is why U.S., European, Chinese, and other countries’ firms go country-by-country in court cases over whose technology is part of the portfolio of patents that make up SEPs, whether a firm is infringing on their patent or not, and what patent owners should be paid to use it.

The EU SEP proposal’s overall goal is to improve the transparency, predictability, and efficiency of the SEPs system. However, the initial EU SEP proposal pivoted from a focus on creating transparency around what patents contribute to standards to focus much more on a centralized body setting royalty rates. The proposed EU mechanism makes it mandatory for patent holders to work via the conciliatory mechanism, however, the outcome is non-binding, including its decision to establish a royalty rate that conforms to FRAND principles. It also creates a nonbinding system of sampling checks to determine the essentiality of an SEP to the underlying standard to be conducted by independent evaluators selected by the EC in accordance with a methodology to be determined by the EC.[6]

In essence, the new European SEP proposal would lead to a new intermediary/conciliator passing judgement on SEP royalty rates between firms that, while non-binding, makes it easier for courts (and countries like China) to undercut or undervalue SEP royalties. Even though the conciliator’s rate decision is non-binding, it would inevitably influence courts and others that could use the determination as a benchmark, or an anchor, to further reduce or limit royalty payments. Past court cases involving SEPs in China and elsewhere have had a similar impact. Given SEP implementors (like Chinese ICT firms or European automotive firms) main incentive is to make SEP royalties as low as possible, these new rate decisions give them a data point that may help them do that.

The conciliator’s central role in setting royalties is the most problematic part of the EU proposal.[7] This approach will appeal to China given its long history of misusing laws, regulations, and its courts to target foreign technology and IP in the pursuit of its industrial policy goals. Such centralized assessments would likely rely on patent counting, which treats each patent in a standard as having equal value, even though the economic value of an SEP and the degree of importance that its contribution has to the standard can vary significantly. It’s easy to see how Chinese conciliators could discount the role and value of foreign SEP holders.

A centralized, and potentially top-down, approach to SEP royalty rate setting avoids delving into a nuanced and specific evaluation of the value of the SEPs under dispute, which can lead to flawed SEP analysis.[8] Never mind the fact that top-down approaches to valuing SEP royalties have been rejected in court decisions around the world. For instance, a recent United Kingdom judgment ruled there was “no value” in the top-down patent royalty rate estimation approach proposed by the plaintiff, and a United States decision that used this method in its ruling was quashed on appeal by the U.S. Court of Appeals for the Federal Circuit.[9] Furthermore, a centralized, top-down approach to producing a single recommended aggregate royalty rate for SEPs disregards the flexibility and adaptability enabled by private negotiation, whereby the chance of holdup through royalty stacking is averted through contractual mechanisms, such as reducing the royalty rate if the licensed SEP is combined with another SEP held by the same owner.[10] A centralized approach also excludes the use of other flexible licensing mechanisms, such as running royalties, lump-sum license fees, payments dependent on milestones achieved by the licensee, payments as a share of profits, and payment through equity in the licensee’s firm. These mechanisms address important compensation questions that a singular aggregate royalty rate fails to account for.

Advanced technology firms have initiated legal challenges over SEPs for some time, especially in the telecommunications sector, as SEPs suffer from a collective action issue. For SEPs to be useful, both the patent holder and licensee must cooperate. Patent owners that want to maximize the returns they can earn from their patents may leverage the fact that their patents are critical to the functioning of a particular technology, thus leading them to ask for large royalty payments. If the two parties can’t agree, there is a so-called “hold-up” as the patent is critical to how a technology functions. Legal disputes lead to litigation in courts, which determine FRAND terms for licensing. If there’s no agreement, it can lead to firms leaving the market.[11] However, litigation can be an all-or-nothing gamble. Many litigated patents are found invalid or non-essential, and so a SEP holder who picked the wrong patents for litigation may end up empty-handed. In contrast, a successful plaintiff may obtain an injunction, particularly in German courts, which are popular with many SEP holders.[12]

While there are ongoing and high-profile court cases over SEPs, the overall SEPs system has worked well. It has supported major telecommunication innovations and the broad adoption of information communication technologies (ICTs) around the world. This has directly contributed to economic productivity around the world given ICTs are one of the most important general-purpose tools in the modern economy. There is a lack of data that the existing SEP-licensing regime is unbalanced and inefficient or that it allows SEP holders to capture excessive profits.[13] In this vein, the EC commissioned a pilot study on the issue of essentiality checks (i.e., seeing if a patent is truly essential to a standard).[14] The study did not eliminate controversy about whether regulation on essentiality transparency is needed, nor is there consensus that the EC’s proposals on SEP transparency are supported by the conclusions of the pilot study. But the study provided a factual basis to assess the impacts of the EC’s proposals on SEP transparency.[15] However, notably, the EC did not initiate any accompanying study on the proposed determination of aggregate royalty rates. This is highly problematic as it points toward a potentially rushed, and problematic, move towards centralized rate regulation. This is especially dangerous as it lends itself to a similar, and highly problematic, mechanism in China.

The EU Intellectual Property Office (EUIPO) would become the central authority of the EU’s new SEP mechanism. This is problematic for several reasons. The EUIPO’s changing role in EC policy development also points to problematic outcomes. The European Patent Office (EPO) itself admitted that it “will never have the competency in patents” as its main competency is trademarks and registered designs.[16] Secondly, the EPO recently wrote to the European Parliament stating that while it is well-versed in the complex relationship between patents and standards and was included in initial consultations on the SEP proposal, that the European Commission has not consulted with it on its most recent proposals.[17] In a step to provide advice without being asked, the EPO states in its letter that the proposal “envisages significant changes to the current framework for SEPs and licensing under terms that are fair, reasonable, and non-discriminatory, as established by the Court of Justice of the European Union (CJEU).” Also, EPO noted that some of these proposed changes “may be ill-suited to achieve these stated goals and require more in-depth analysis” and that the evidence put forward by the EC to justify its approach was inconclusive (i.e., lacking). Furthermore, the EPO points out that some of the proposed measures are potentially inconsistent with the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and with respect to fundamental rights under the European Charter of Human Rights.[18]

SEPs as Another Point of Conflict in the Geopolitical Battle Over Technology

SEPs are another area where global and national technology policies clash. It’s common practice for firms to engage in portfolio-wide global licenses as there are many technologies and patents that together create common, core functionality for a technology. Firms don’t want to negotiate different rates for each country they operate in, which for many firms, is basically globally. However, this is getting challenging, as patents are governed by national laws and more sectors use technologies included in SEPs. SEPs litigation has increased, in part, due to the fact that connectivity standards (e.g., 4G, 5G, and Wi-Fi) are used in new industries, such as connected vehicles, smart homes, and smart factories.[19] This can lead to country-by-country legal battles between firms over patents, SEPs, and royalties. Courts in the United Kingdom, United States, and China have decided that they have jurisdiction to determine global FRAND terms and conditions in specific cases impact the firms in the court’s home country and abroad.[20] So an adverse decision in one country can spill  over into another.

National courts are the main players adjudicating SEP disputes. Sometimes court determinations are done in arbitration, but there's very little SEP arbitration. Standards development organizations play a supporting role with rules that firms agree (or not) to have their patent as part of a SEP and that they will negotiate on FRAND terms. But their competence ends there. There is no other government agency or institution that has the authority or competence to assess the essentiality of patents in SEPs and their value. For example, the U.S. Patent Trial and Appeal Board (PTAB) and other similar bodies determine whether a patent is valid or not, but they don’t determine whether patents are essential to an SEP and what it’s rate should be. Moreover, court determinations are ad hoc and uneven in terms of what factors they address. Courts come up with many ways to determine FRAND rates. There is also not a lot of transparency around assessing patents that make up SEPs and the licensing agreements that firms negotiate with licensees. These factors led to the EU SEP proposal.

The growing geopolitical conflict over technology is drawing governments closer into the battle over the terms and conditions of SEPs. China, India, Japan, Korea, and Singapore, the United Kingdom, and the United States, have all released or are considering guidelines governing SEP licensing negotiations.[21] This is concerning as China has proven it is willing to use its laws and courts to support its protectionist industrial development goals. The EU SEP conciliation process may be beneficial to some firms in some ways (such as improving transparency around what patents are essential and their rate), but the economic benefit of this would more than likely pale in comparison to the cost of it providing cover to China to misuse the framework to either ignore foreign patents or devalue them (in terms of determining royalties). Some Chinese commentators have made this exact point [translated quote]: “China is actually the biggest beneficiary of the EU's support for the new SEP framework. This has also become the biggest reason for some people in the United States to call on the EU to abandon this reform and remind them that it will benefit China.”[22]

Europe’s SEP Proposal Provides an Opening for China to Replicate and Repurpose It for Industrial Policy

The unfortunate reality is that whatever the EU ultimately ends up doing on SEP reforms will lend validity to what China will inevitably try to do in misusing SEP rules for protectionist industrial policy goals. The EU’s proposed rate-setting mechanism is troubling enough if it came to reality in the EU, but in many ways it’s even more troubling given the signal it sends China given it’s past history of using its opaque and discriminatory IP rules,  anti-trust, and associated court decisions and legal tools as an extention of Chinese government industrial policy. China uses these tools to drive down the price of foreign IP and technology. More than likely, China’s government will use SEP rate regulation to benefit Huawei and other Chinese firms. As the Rhodium Group points out, while China may be falling short of its technology self-sufficiency goals (especially in semiconductors) and undergoing a deep economic slowdown, it can decide to use extraterritorial tools—including anti-monopoly veto power on foreign tech mergers and anti-suit injunctions for SEPs—more forcibly in retaliation for tightened U.S. export and other controls.[23]

China has already become an important battlefield for international SEP disputes by establishing its own standards of reviewing the substantive and procedural issues (figure 1).[24] Of the 196 SEP cases from 2011 to December 2019, 96 percent were in the telecommunications sector.[25] Furthermore, as shown in figure 2, more than 75 percent of SEP cases accepted by Chinese courts occurred between Chinese and foreign entities. This highlights the enormous stakes involved with how China approaches SEPs in advanced technology sectors.

Figure 1: Number of SEP cases in Chinese courts, 2011–2019[26]


Figure 2: Nationality of the parties to SEP cases accepted by Chinese courts, 2011–2019[27]


Several SEP-specific signs suggest that China is going to follow the EU in more strictly regulating and managing SEPs and associated royalty rates. China is willing to misuse legal means and blatantly illegal means (in terms of cyber theft) to acquire IP for advanced technology sectors, so it’s easy to envisage China misusing SEP regulation to target foreign patents and technology. Many industry and legal experts have commented on the issue, largely focusing on applauding the EU’s proposal and encouraging Chinese authorities to follow suit to target the royalty rate set by foreign firms.

An April 2023 article on WeMedia captures the general fear in stating that China should follow the EU to give the Chinese government the administrative power outside of courts to [translated quote] “dismantle U.S. intellectual property hegemony.”[28] In January 2023, China’s Intellectual Property Society (CNIPs) launched a project, and draft proposal, on Standard Essential Patent Determination Methods.[29] In March 2023, Huang Weicai, CEO of MQpat (which provides patent analytic support in China and helps Chinese firms resist patent claims from foreign rights holders) published an article that proposed a Chinese SEP framework similar to the EU regulation.[30] It includes many similar elements as the EU proposal (such as an intermediary), but without many details.

Like in Europe, China’s automotive sector is agitating for the government to intervene on SEPs given networked vehicles have created points of conflict between the automotive and tech sectors. Wang Junlei (who works at the China Automotive Technology Research Center Co., Ltd., the Intellectual Property Branch of the China Society of Automotive Engineers, and the State Intellectual Property Office) stated “It can be said that China's automobile industry is currently facing extremely significant SEP risks.”[31] Indicative of the fear China will use SEP rate regulation to target foreign royalty payments in the sector, a March 2023 China Automobile News article estimated that Chinese automotive companies would pay approximately $683 million in SEP royalties a year based on existing arrangements. Wang JunLei is quoted as saying that this would “greatly constrain the Chinese intelligent connected vehicle sector’s development” and that this is why China should break the existing licensing framework, establish a new licensing model, and create a reasonable “Chinese model” needed to develop the automotive industry.[32]

Similarly, at the 2023 Global Automotive Intellectual Property Summit in Beijing, a partner at a local law firm stated that the EU’s proposal showed why it was important for Chinese policymakers to react to and present its own proposals to [translated quote] “contribute Chinese wisdom and Chinese solutions to the field of global SEP governance and promote the vigorous development of China's related industries.”[33] China’s Automotive Technology and Research Center’s (CATARC) September 2022 SEP guidelines for the automotive sector is the only industry-level SEP guidance document in China.[34] In March 2023, the China Automobile IP Utilization Promotion Center published SEP licensing guidelines, including proposals to calculate SEP royalty rates.[35] Also in March, Zhu Huarong, a Chinese auto executive, made a proposal to China’s National People’s Congress on SEP essentiality checks.[36]

Chinese Intellectual Property Data Tells Us About Potential Discriminatory Treatment Under a New Centralized, Top-Down SEP Mechanism

A top-down approach to determining aggregate SEP royalties in China is problematic as it provides much greater discretion for biased assessments. Any such proposal in China should set off alarm bells in the United States given that country’s past and ongoing efforts to steal and devalue U.S. technology.[37]

While official data regarding the treatment of foreign IP in China is mixed, there is more than enough data, court cases, and reports to show China’s track record of misusing laws and judicial processes in related IP policy areas. China also has a long history of leveraging its expedited court proceedings to undercut foreign jurisdictions in IP disputes of all types. Based on available (albeit curated and not comprehensive) data, foreigners appear fairly treated in IP-related cases in China.[38] According to official Chinese data, foreign-related litigation has long hovered at below 1 percent of the total (in contrast, in the United States, foreign applicants are at a rough parity with domestic applicants).[39]

However, on strategic technologies and SEPS, the data clearly shows discrimination. There are anecdotal reports that Chinese courts discriminate against foreign firms acquiring technology in these sectors.[40] All these major cases have involved standardized wireless cell phone technology. Studies highlight the risks that foreign companies encounter when they litigate in areas of concern to the local government or national interests.[41] For example, studies show potential bias against foreigners in China’s IP system, particularly in patents for standardized 5G and telecommunications technology.[42] Furthermore, Dr. Gaetan De Rassenfosee in "Technology Protectionism and the Patent System: Strategic Technologies in China" analyzed data on half a million inventions submitted to the Chinese patent office and found that "foreign applications in technology fields that are of strategic importance to China are four to seven percentage points less likely to be approved than local applications, all else equal."[43] Dr. Gaetan De Rasenfosse, Emilio Raitieri, and Ruddi Bekkers also documented bias in the examinations by China’s patent office of high value SEPs by analyzing several thousand Chinese and foreign SEP applications and grants.[44] They noted that foreign SEP applications disclosed as such before the entrance into the substantive examination phase at the Chinese patent office are significantly less likely to receive a grant than a domestic applicant. In addition, if such foreign-owned applications do receive a grant, the grant decision arrives substantially later, and the scope of the grant is significantly reduced from the original application.[45]

Part of the issue with the data is that the lack of transparency in China’s system means it only ever tells part of the story. This makes it difficult to assess how much foreign companies may be disadvantaged by its IP regime. It has an opaque administrative system. There are unpublished or censored cases. For example, certain major cases, such as the largest patent judgment in China, involving Schneider Electric (a French multinational firm) as a defendant, have never been reported. Pointing toward China’s ability to manipulate its IP system, transparency is clearly driven by the state of the U.S.-China relationship. Publication of IP cases stopped during the recent U.S.-China trade war during the Trump administration.[46] As Mark Cohen stated during U.S. Senate testimony “insufficient transparency on IP cases is the single biggest problem in U.S.-China IP relations.”[47] The EU filed a WTO dispute case against China’s for its non-transparent practices in granting anti-suit injunctions.[48]

China’s Weaponization of Anti-Suit Injunctions Is Instructive for What Will Likely Happen With a Centralized and Top-Down SEP Rate-Setting Mechanism

China’s willingness to weaponize its legal system to impact IP and industrial policy is on clear display through its use of anti-suit injunctions (ASIs), which are court orders prohibiting litigants (firms) from pursuing parallel litigation in other countries. If firms do, they face judicial fines as high as $141,000 a day (without an aggregate cap). China has become a major user of this remedy. By issuing ASIs in Conversant v. Huawei and InterDigital v. Xiaomi in late 2020, Chinese courts signaled a new willingness to vie for jurisdictional authority in global battles over standard-essential patents and FRAND licensing.[49] ASIs reinforce the jurisdiction of the Chinese courts over global FRAND lawsuits.

China’s use of ASI’s is useful in the context of Europe’s SEP regulation as it shows how China repurposes a western legal mechanism for its own ends—to increase the value of Chinese technology and decrease the value of foreign technology “monopolies.” Mark Cohen and other IP experts point out that China’s ASI practice is a kind of linguistic “false friend” intended to normalize bad behavior by adopting western nomenclature.[50] Courts in the United States and elsewhere also issue ASIs, but unlike common law countries, Chinese ASIs are exclusively extra-territorial in nature. Chinese ASIs are part of a national effort to increase the role of Chinese courts in establishing global judicial norms that have been promoted and endorsed by the highest levels of China’s political and judicial leadership.[51] Western ASIs are rarely intended to promote the role of the courts in international disputes, while China’s use of ASIs have created new causes of action and unique conflict of law. Chinese ASIs have also precipitated other changes in the adjudication of SEPs to accommodate this more aggressive posture through creation of new causes of action, adoption of unique conflicts of law rules, etc., while the disruption caused by Western ASIs on domestic legal systems has been relatively minor. As Mark Cohen states, the United States and others should look at Chinese ASIs exclusively in functional terms—in terms of how they’re used for industrial goals. Using Western nomenclature to describe unfair practices can lead to normalization and inappropriate acceptance of such practices. In the same vein, China will likely use many of the concerns, components, and functions in the EU SEP proposal, but for distinctly industrial development goals.

In 2022, the EU—joined by the United States, Canada, and Japan—challenged these practices at the WTO, arguing that China’s policy of using anti-suit injunctions to prohibit patent enforcement outside China unfairly restricts patent rights in violation of Article 28 of the TRIPS Agreement.[52] The EU’s WTO trade case against China seemed, at least temporarily, to slow China down in its use of ASIs. However, the sense among observers is that the EU SEP proposal has given them the green light to try again and use ASI and SEP regulations as they wantas a tool for industrial policy.

Conclusion: Don’t Provide Cover for China to Create a New Tool for Industrial Policy

U.S. firms rely on licensing royalties from their portfolios of SEPs to earn returns on their long-term and risky R&D investments, which they use to reinvest in future R&D. U.S. firms’ decision to continue making costly and risky investments will be impacted from politicized SEP adjudication and rate-setting mechanisms that reduce their returns on investment. Europe’s creation of a top-down mechanism to adjudicate SEPs would create an opening to politicize SEP oversight and provide a model for China to replicate and use to further discriminate against foreign technology and firms. Given the data and history of China’s IP policy, it’s easy to envision a scenario where China comes up with a similar intermediary adjudication mechanism as Europe to review and set rates for patents looking at the equivalent (foreign-owned) patents in China and determining them non-essential (thus not a SEP) or determining the patent essential, but setting a different rate that devalues the patent because it’s owned by a foreign firm.

One other major uncertain factor is whether the Biden Administration is even prepared to defend U.S. innovators and their IP in China and the EU. It was heartening to see recent testimony from U.S. Commerce Secretary Raimondo highlighting that the Biden administration has concerns about the EU SEP proposal and that it has engaged the EU about these concerns.[53] However, elsewhere, the Biden administration has not done anything new to protect IP and target China’s ongoing cybertheft of IP. The Biden administration needs to recognize that allowing countries to politicize and weaponize SEP adjudication for industrial policy purposes will hurt the U.S. economy and the many advanced technology sectors its otherwise trying to support.


[1].        “Joint ITA-NIST-USPTO Collaboration Initiative Regarding Standards; Notice of Public Listening Session and Request for Comments,” Federal Register, September 11, 2023,

[2].        European Commission, “Proposal for a regulation of the European Parliament and of the Council on standard essential patents and amending Regulation (EU) 2017/1001,” April 27, 2023,

[3].        Maximilian von Laer, Knut Blind, and Florian Ramel, “Standard essential patents and global ICT value chains with a focus on the catching-up of China,” Telecommunications Policy, Volume 46, Issue 2, March 2022,

[4].        Fredrik Erixon, “Power, cooperation and Standard Essential Patents – Reviewing the European Commission’s bid for reform,” European Center for International Political Economy, October, 2023,   

[5].        “Press conference by Thierry Breton, European Commissioner, on new rules to complete the Single Market for patents,” European Commission, April 27, 2023,   

[6].        Alden Abbott, Christine McDaniel, and Satya Marar, “The European Commission's Draft "Proposal for a Regulation of the European Parliament and of the Council on Standard Essential Patents" is Unnecessary and Harmful,” Mercatus Center, May 23, 2023,  

[7].        European Commission, “Proposal for a regulation of the European Parliament and of the Council on standard essential patents and amending Regulation (EU) 2017/1001,” April 27, 2023,

[8].        Keith Mallinson, “Critique of top-down rate setting in TCL v. Ericsson,” WiseHarbor, April 30, 2018,   

[9].        Jan Wolfe, “Fed Circuit tosses Ericsson's $100 million patent win against TCL,” Reuters, April 14, 2020,   

[10].      Alden Abbott, Christine McDaniel, and Satya Marar, “The European Commission's Draft "Proposal for a Regulation of the European Parliament and of the Council on Standard Essential Patents" is Unnecessary and Harmful,” Mercatus Center, May 23, 2023,

[11].      Florian Mueller, “Next smartphone maker preparing to exit Germany over Nokia patent injunction: China's Vivo makes official announcement while Nokia misses earnings estimates, Foss Patents, April 23, 2023,

[12].      Joachim Henkel, “The Proposed EU Regulation on SEPs (I): The problems it addresses,” Kluwer Patent Blog, April 19, 2023,  

[13].      Alden Abbott, Christine McDaniel, and Satya Marar, “The European Commission's Draft "Proposal for a Regulation of the European Parliament and of the Council on Standard Essential Patents" is Unnecessary and Harmful,” Mercatus Center, May 23, 2023,

[14].      “Pilot study for essentiality assessment of Standard Essential Patents,” European Commission, November 20, 2020,

[16].      Trevor Little, “A year at the EUIPO: an in-depth interview with executive director Christian Archambeau,” World Trademark Review, June 30, 2022,  

[17].      Letter from António Campinos, President, European Patent Office, to the Chair and Vice-Chair and Rapporteur of the European Parliament’s Committee on Legal Affairs, October 18, 2023.

[18].      Ibid.

[19].      LexisNexus, “SEP Litigation Trends: What Does the Data Say?,” May 3, 2021,

[20].      See. Judgment of the United Kingdom’s Supreme Court of 26 August 2020, Unwired Planet v. Huawei, UKSC 2018/0214, [2020] UKSC 37, Decision of the United States District Court for the Central District of California, TCL v Ericsson, Case No 8:14-cv-00341-JVS-DFM with consent of both parties. Chinese Supreme Court’s ruling of 19 August 2021, OPPO v Sharp, Zui Gao Fa Zhi Min Xia Zhong No. 517, Order of the Wuhan Intermediate Court of 23 September 2020, Xiaomi v. Interdigital, (2020) E 01 Zhi Min Chu 169 No 1; Order of the Wuhan Intermediate Court, Samsung v Ericsson [2020], Case E 01 Zhi Min Chu No 743. 

[21].      See: Japanese Patent Office Guide to Licensing Negotiations Involving Standard Essential Patents; South Korean Guidelines on unfair exercise of Intellectual Property Rights; Singapore’s Competition & Consumers Commission Guidelines on the treatment of Intellectual Property Rights. The United States of America withdrew its Policy Statement on Licensing Negotiations and Remedies for Standards-Essential Patents Subject to FRAND Commitments and concluded a Memorandum of Understanding with the WIPO Arbitration and Mediation Centre. In 2021, the UK launched a review of SEPs and innovation. India’s Department of Telecommunications is discussing a proposal to set up a Digicom Intellectual Property Management Board to facilitate IP licensing and IP management in the telecommunication sector. China has consulted on the draft amendments to the implementing regulations of its Anti Monopoly Law. Japan’s Patent Office is revising its guidelines and METI launched a Study Group on Licensing Environment of SEPs. 

[22].      [translated] Wu Zheng, “Europe, licensor negotiation group once again becomes the focus of SEP,” Wechat, October 8, 2023,

[23].      Reva Goujon, “Running Target: Next-Level US Tech Controls on China,” Rhodium Group, September 28, 2022,

[24].      Wei Huang, “A Review of the Development of SEP-Related Disputes in China and Outlook for the Future Trend,” Competition Policy International, November 15, 2022,

[25].      Zhao Qishan and Lu Zhe, “Statistics of Chinese SEP Cases in 2011-2019,” LexField, July, 2020,

[26].      Ibid.

[27].      Ibid.

[28].      [translated] Huang Xiaoying, “European SEP in chaos,” WeChat, April 6, 2023,

[29].      [translated] “Announcement of the China Intellectual Property Research Association on the first batch of drafting units of a series of group standards such as "Method for Determination of Standard Essential Patents," China Intellectual Property Society, March 17, 2023,

[30].      [translated] Huang Weicai, “Moqiu: New Framework for Standard Essential Patent Licensing,” WeChat, March 10, 2023,; Beijing Moqiu Technology Co.,

[32].      Ibid. 

[33].      [translated] Zhang Jian, “Challenges and responses in the field of automotive standard essential patents,” May 12, 2023,

[34].      [translated] “The Intellectual Property Branch of the China Automotive Industry Association, the IMT-2020 (5G) Promotion Group and others jointly released the "Automotive Industry Standard Essential Patent Licensing Guidelines," WeChat, September 13, 2022,

[35].      [wayback machine internet archive, translated] “Guidelines of Standard Essential Patent License for Automotive Industry,” China Automotive IP Utilization Promotion Center, September 13, 2022,

[36].      [translated] China Automotive IP Utilization Promotion Center, “Watch the Two Sessions | Changan Automobile Chairman Zhu Huarong’s “Suggestions on Improving the Standard-Essential Patent Conflict Resolution Mechanism” and his interpretation,” WeChat, March 9, 2023,

[37].      Alden Abbott, Christine McDaniel, and Satya Marar, “The European Commission's Draft "Proposal for a Regulation of the European Parliament and of the Council on Standard Essential Patents" is Unnecessary and Harmful,” Mercatus Center, May 23, 2023,

[38].      The curated data, while useful in developing strategies, is not comprehensive. March Cohen, “An Update on Data-Driven Reports on China’s IP Enforcement Environment,” China IPR, July 13, 2020,

[39].      Mark A. Cohen, “Engaging and Anticipating China on IP and Innovation,” Testimony before the Senate Committee on the Judiciary, Subcommittee on Intellectual Property, April 18, 2023,

[40].      Stu Woo and Daniel Michaels, “China’s Newest Weapon to Nab Western Technology—Its Courts,” Wall Street Journal, February 20, 2023,

[41].      Ibid.

[42].      Gaetan de Rassenfosse, Emilio Raiteri, and Rudi Bekkers, “Discrimination against foreigners in the patent system: Evidence from standard-essential patents,” SSRN, January 2, 2023,; Hillary Santuary, “Does the Chinese patent office discriminate against foreigners?,” EPFL, April 9, 2021,  

[43].      Gaétan de Rassenfosse and Emilio Raiteri, “Technology Protectionism and the Patent System: Evidence from China,” J Ind Econ, 70: 1-43.

[44].      Gaetan de Rassenfosse, Emilio Raiteri, and Rudi Bekkers, “Discrimination against foreigners in the patent system: Evidence from standard-essential patents,” SSRN, January 2, 2023,

[45].      Ibid.

[46].      Mark A. Cohen, “Engaging and Anticipating China on IP and Innovation,” Testimony before the Senate Committee on the Judiciary, Subcommittee on Intellectual Property, April 18, 2023,

[47].      Ibid.

[49].      Jorge L. Contreras and Yang Yu, Will China's New Anti-Suit Injunctions Shift the Balance of Global FRAND Litigation? (November 5, 2020). Patently-O, Oct. 22, 2020, University of Utah College of Law Research Paper No. 403, Available at SSRN: or

[50].      Mark A. Cohen, “Engaging and Anticipating China on IP and Innovation,” Testimony before the Senate Committee on the Judiciary, Subcommittee on Intellectual Property, April 18, 2023,; Mark Jia, Illiberal Law in American Courts, University of Pennsylvania Law Review, vol. 168, July 24, 2019, or

[51].      Mark A. Cohen, “Engaging and Anticipating China on IP and Innovation,” Testimony before the Senate Committee on the Judiciary, Subcommittee on Intellectual Property, April 18, 2023,;

[53].      Florian Mueller, “U.S. Secretary of Commerce expressed Biden Administration's 'concerns' over EU SEP regulation proposal, also communicated them to EU Commission: Senate hearing,” Foss Patents, May 4, 2023,

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