On December 5, 2019, a number of large and small technology companies wrote to the Dept. Of Commerce and the USPTO to express support for, among other things, the eBay decision.  Focusing on the SEP context, the companies point out that injunctions are unnecessary to address litigation misconduct or willful infringement, as monetary remedies and sanctions are sufficient.  Additionally, they note that granting injunctions based on negotiation behavior would incentivize patent owners to focus on impugning the potential licensee’s motives, rather than actually trying to negotiate a mutually-acceptable license.  

On January 31, 2019, a number of industry associations sent a letter to the Dept. Of Commerce and the USPTO regarding recent comments the Dept. of Justice made regarding SEPs.  Those associations, which represented over $4.5 trillion in annual contributions to the U.S. GDP and over 54 million American jobs, expressed concerns about the Assistant Attorney General Makan Delrahim’s comments regarding SEPs.  Specifically, the associations objected to the Antitrust Division withdrawing its assent to the 2013 joint DOJ-USPTO “Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments,” which, among other things, discouraged the use of injunctions by SEP owners to extract excessive royalties.  

On April 22, 2019, thirty-nine companies again wrote to the Dept. Of Commerce and the USPTO to request the Department’s support for the 2013 Policy Statement. Specifically, the signatories (which represented over $100 billion in annual R&D spending) addressed two letters written by four companies that engage in SEP licensing. The signatories contested the SEP licensors’ suggestions that (i) the 2013 Policy Statement was inconsistent with existing U.S. law, (ii) patent hold-out is a significant problem that can only be addressed with injunctions, and (iii) the 2013 Policy Statement is inconsistent with the WTO’s TRIPS agreement.