Klobuchar Moving Toward Legislation to Clarify Standards for ITC Exclusion Orders
Senate Antitrust Subcommittee Chairwoman Amy Klobuchar, D-Minn., is considering legislation this fall that would "clarify" the standards for issuing injunctions and U.S. International Trade Commission (ITC) exclusion orders related to standard-essential patents, she said July 30. Witnesses at a July 30 subcommittee hearing had made it evident that some standard-setting organizations are taking antitrust concerns related to standard-essential patents (SEPs) "seriously" by voluntarily adopting best practices and updating their intellectual property rights policies, Klobuchar said.
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There are certain circumstances where it is not anticompetitive for an SEP holder to seek a court injunction or ITC exclusion order if it is clear a potential licensee is unwilling to negotiate on fair, reasonable and non-discriminatory terms, noted Suzanne Munck, the FTC's chief IP counsel in her testimony (here). While injunctions and exclusion orders "might be appropriate" when a potential licensee is unwilling or unable to pay the SEP holder a royalty, but if the licensee is willing, "injunctions and exclusion orders should be off the table," according to Intel General Counsel Douglas Melamed (here).