CLE Materials for 2021 Conference on Intellectual Property and Innovation Policy for 5G and the Internet of Things

PANEL 1: SEP ENFORCEMENT AND FRAND LICENSING

This panel addressed issues arising under U.S. Patent law relating to the enforcement and licensing of standard-essential patents in 5G/IOT-enabled market, along with FRAND licensing commitments under U.S., British, and European law.

PANEL 2: PATENT HOLDUP AND HOLDOUT – ROYALTY STACKING AND COMPARABLE LICENSES

This panel discussed theoretical arguments and empirical evidence regarding patent holdup and holdout in wireless markets. The panel also discussed how patent licensing has supported the dissemination of wireless communications technologies by enabling and securing information flows between innovators and implementers. The panel further discussed conventional wisdom among regulators and cast doubt on the necessity for judicial or regulatory intervention in SEP licensing markets.

PANEL 3: EFFICIENT INFRINGEMENT

This panel addressed the “deterrence crisis” that has emerged as a result of the practical unavailability of injunctive relief for SEP owners and other significant categories of U.S. patent owners. In a no-injunction environment, well-resourced users have little incentive to pay a license up front; rather, these firms rationally elect to infringe and effectively “negotiate” the licensing rate through litigation. To correct this imbalance, the panel discussed whether courts should award enhanced damages against infringers in the event the patent owner has no realistic expectation of securing an injunction. The panel also documented cases of efficient infringement, showing how current patent doctrine has induced certain firms to engage in this practice, and analyzed the extent to which this practice is impacting innovation incentives in certain segments of the technology ecosystem.

PANEL 4: PRACTICAL TOPICS IN FRAND LICENSING (AUTOMOTIVE FOCUS)

This panel addressed emergent SEP licensing practices in the automotive and related mobility markets––specifically, the extent to which market-driven solutions are available to preempt potential transaction roadblocks arising from the intensive use of SEPs in 5G/IOT-enabled mobility markets. The panel will discussed specifics of licensing in various IOT verticals––in particular, that the wider use of connectivity standards in various IOT verticals means on the one hand that SEP owners must negotiate licenses for a broad range of different products with an increasing number of implementers, many of which are less familiar with technology standards and SEP licensing, whereas on the other hand implementers must take licenses from an increasing number of SEP owners for the different connectivity standards they may use in their products.

PANEL 5: 5G, SEPS, AND NATIONAL SECURITY ISSUES (CHINA FOCUS)

This panel addressed “rule of law” issues in the adjudication of rate-setting disputes in China. This analysis encompassed a mix of patent and competition law issues, including Chinese courts’ understanding of the “abuse of dominance” concept in connection with SEP royalty rates, the influence of industrial policy on the adjudication of patent infringement litigation, and unsettled questions concerning comity principles and deference to foreign judgments, along with issues relating to the enforcement and licensing of SEPs in the Chinese market, in light of Chinese courts’ treatment of SEPs as a matter of both patent and competition law.

PANEL 6: GLOBAL DIFFERENCES IN ANTITRUST TREATMENT OF SEPS AND SSOS

This panel addressed the global antitrust treatment of SEPs and FRAND obligations, as a matter of antitrust, patent, and contract law. It focused on the recent litigation in federal court between Continental, an automotive component supplier, and Nokia, a leading SEP owner, and the roughly concurrent dispute between Daimler, an automotive manufacturer, and Nokia in German courts. The panel also looked at potential antitrust and national security issues and the adequacy of existing legal and regulatory structures for this space.

BONUS MATERIALS FROM DAY ONE LUNCH & KEYNOTE ADDRESS BY HON. PROF. F. SCOTT KIEFF (NON-CLE SESSION)