Six Republican U.S. senators oppose exclusion orders over standard-essential patents

A letter, dated June 19, 2012, addressed to U.S. ITC Chairman Deanna Okun from six Republican U.S. senators who oppose exclusion orders over standard-essential patents was published today by FOSS Patents.

Florian Mueller reports for FOSS Patents, “The antitrust-savvy signatories are, besides Chairman Herb Kohl (Wisconsin) and Ranking Member Mike Lee (Utah), Senators Jon Kyl (Arizona; notably, the Republican Whip), John Cornyn (Texas), Jim Risch (Idaho), and John Hoeven (North Dakota)… it was filed in the investigations of both Google/Motorola complaints (the one against Apple as well as the one against Microsoft).”

MacDailyNews Note: Correction: 6/29, 9:00am EDT: Senator Herb Kohl is a Democrat.

The full text of the letter:

Dear Chairman Okun:

We write to express concerns with regard to the availability of the exclusion order as a remedy for cases in which “stanard-essential patents” (SEPs) are asserted. Although we take no position on the particular merits of the above-captioned cases, we urge the Commission to consider the following public interest arguments carefully as it proceeds with these and other matters in which SEPs are at issue.

Business and consumers depend on a reliable standards-setting process to promote interoperability and expand choice. Industry standards underpin many of the technologies incorporated in common products used to play online video, connected to the Internet, watch DVDs, or communicate via smartphone. These standards are crucial to ensuring that consumers have access to a competitive market of compatible products.

Many companies that participate in setting industry standards contribute patented technology to the standardization process. As a result, standard-essential patents are inevitably infringed when the standard is implemented. The standards setting process thus depends on a commitment from companies contributing patents to license those patents to all parties implementing the standard on reasonable and non-discriminatory (RAND) terms.

For the standards setting process to function effectively, companies that commit to license their SEPs on RAND terms must seek to resolve disputes over patents through a royalty agreement or judicial determination of a reasonable rate. As these companies have pledged not to exercise exclusivity over such patents, they should not expect the grant of an exclusion order when they are in violation of an obligation to license the patents on RAND terms.

Any precent that would enable or encourage companies to include their patented technology in a standard, commit to license included patents on RAND terms, and then seek to secure an exclusion order despite a breach of that commitment would thus implicate significant policy concerns. Such an outcome would severely undermine broad participation in the standards-setting process, which would in turn threaten the meaningful benefits these standars provide for both industries and consumers.

Given the value and importance of industry standards, we trust that you will carefully consider and give due weight to these critical public policy concerns in your analysis. Please keep us advised as your decision making process proceeds.



Full article here.


          1. No cliché or aphorism can cover up the fact that a broken clock is never right, as it has no ability to function in the manner designed.

            As my daddy said,” don’t count your chickens till the cows come home.”

    1. I have met Sen. Mike Lee several times and I was able to discuss varying issues with him face to face. He is a good man and fights to uphold the US Constitution.

      Do you disagree with the merits of the arguments presented in the above letter, or do you just dislike Sen. Mike Lee?

    2. I evaluate each statement on its own merits.  Just because you are an idiot doesn’t mean that everything you say in the future will necessarily be wrong.

    1. No. It is a horrible letter.

      This is not an email. This is not a post on some website. It is not a text message. This is not a “note to self”. This is a formal letter from U.S. Senators to the U.S. ITC Chairman. I can tolerate gross errors in emails, texts, and such. Formal letters at a such a high level need to be correct.

      I agree with the overall tone and point of the letter, but there are so many errors in it that I would be too embarrassed to sign it.

      No U.S. Senator should be stupid enough to sign it. (However, having known a few U.S. Senators that signed whatever their senior staff put in front of them without ever reading it, I’m not surprised they signed this.)

      I guess we can hold out no hope for the U.S. education system if U.S. Senators don’t know the English language well enough to not sign badly worded documents.

    1. Really, prove it with a breakdown champ, Routine hardware my ass, show me proof.

      See the problem is with you trolls, you talk allot out your asses but can’t back it up.

      Show me engineering and design in curcut boards that Apple labs didn’t design and make, Apple has even designed and patented the Retina Screen, Battery design is also a Apple patent with circuit designs that has innovated power use and longer life in a smaller cell plate and these are a few out of may hundreds of designs and hardware inovations, they might be produced in a LG / Samsung / Foxconn plant, but Apple engineered and designed the underpinnings of the parts and curcut board layout, so nice try but you fail, no off the shelf parts in thease systems. Excluding HD or RAM, and even the hard drives have Apple special Firmware.

      Apple has always lead the way in Industry design and engineering, why do you think Everyone copies them.

      Zune away or how about, how’s that update android.

    1. from what I gather, it must be an honor system type of thing. so its never really an issue until someone pulls a fast one and tried to beat the system. I think that is what is going on here. Can anyone better versed in patent law chime in here?

      1. You’be got it right. Until Apple started asserting their unique patents, I don’t think anyone had asserted FRAND patents before. It’s just that Smasung and everyone else scrambled to see what patents they could assert, and this was the weak hand they came up with. It was maybe for the copycats to save face, maybe because they expect nothing bad to come of it, but most definitely to buy them time to devise workarounds so that if a product is found to infringe, that’s they have a solutions and a product ready that doesn’t infringe, however awkward that workaround may be. Isn’t justice swift and doesn’t is leave you with the warm fuzzy feeling that there is right and good in the world?!

      2. I think the FRAND thing started with Apple and Nokia. Nokia wanted to copy Apple and threatened to charge super high rates to Apple unless they swapped patents. Apple said no, maybe even Hell no. LOL And then paid nothing as no agreement had been reached. Nokia spent one to two years trying to sue Apple and they finally settled with Apple paying back license fees that were reasonable.

        I think that was the death of Nokia. They kept waiting and trying to sue so they could be Apple too. It did not work and then they started dying.

    2. These companies need to be treated like young children. We need to keep repeating the rules. The timeout bench may improve corporate behavior. It works for my 4 year old.

  1. Who cares if their Dem. or Rep. They are all politicians and as such are a waste of skin, congressional approval is in the single digit range. They will never fix the problems in this country, they are the problem.

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