2023-19667. Joint ITA-NIST-USPTO Collaboration Initiative Regarding Standards; Notice of Public Listening Session and Request for Comments

AGENCY:

United States Patent and Trademark Office, Department of Commerce.

ACTION:

Notice of public listening session; request for comments.

SUMMARY:

The International Trade Administration (ITA) creates prosperity by strengthening the international competitiveness of U.S. industry, promoting trade and investment, and ensuring fair trade and compliance with trade laws and agreements. The National Institute of Standards and Technology (NIST) promotes U.S. innovation and industrial competitiveness by advancing standards, and technology in ways that enhance economic security and improve our quality of life. The United States Patent and Trademark Office (USPTO) plays an important role in incentivizing and protecting innovation, including innovations contributed to international standards bodies. In May 2023, the White House announced the United States Government National Standards Strategy for Critical and Emerging Technology (“the Strategy”), which, among other things, seeks to strengthen U.S. engagement in standards for critical and emerging technologies. As a means to further the implementation of the Strategy, and pursuant to a Request for Information on Implementation of the United States Government National Standards Strategy for Critical and Emerging Technology published by NIST (Docket No. NIST–2023–0005), ITA, NIST, and the USPTO (“the Agencies”) are initiating a listening session with stakeholders focused on issues at the intersection of standards and intellectual property. The Agencies are seeking stakeholder input on the current state of U.S. firm participation in standard setting, and the ability of U.S. industry to readily adopt standards to grow and compete, especially as that relates to the standardization of critical and emerging technologies.

DATES:

The public listening session will be held on Wednesday, September 20, 2023, from 1 to 5 p.m. ET. Persons seeking to speak at the listening session must attend in person and register by 5 p.m. on September 13, 2023. Persons seeking to attend, either in person or virtually but not speak at the event, must register by September 18, 2023. Seating is limited for in-person attendance. Written comments will be accepted until September 29, 2023.

ADDRESSES:

Public Listening Session: A public listening session focused on issues at the intersection of standards and intellectual property will take place, in person, in the Clara Barton Auditorium at the USPTO headquarters, 600 Dulany Street, Alexandria, VA 22314. The session will also be available via live feed for those wishing to attend remotely. Registration is required for both in-person and virtual attendance. Information on registration is available at https://www.uspto.gov/​about-us/​events/​public-listening-session-innovating-ideas-standards-and-intellectual-property. Registrants must indicate whether they are registering as a listen-only attendee or as a speaker participant. Requests to participate as a speaker must include:

1. The name of the person desiring to participate;

2. The organization(s) that person represents, if any;

3. Contact information (address, telephone number, and email); and

4. Information on the specific question(s) of interest to the speaker (or their organization) and identification of the primary question of interest.

Speaking slots are limited; preference will be given to speakers wishing to address one of the questions raised in this request for comments. We will attempt to group speakers by topics relating to the questions. Topics and speakers will be announced before the public listening session. The agencies have a strong preference for speakers to attend in person. Speakers are required to submit their written remarks for the listening session in advance through the Federal eRulemaking Portal at www.regulations.gov. We will inform each speaker in advance of their assigned time slot. If we receive more requests to speak than time allows and are unable to assign a time slot as requested, we will invite the requestor to submit written comments. Time slots will be at least five minutes but may be longer, depending on the number of speakers registered. A panel of ITA, NIST, and USPTO personnel may reserve time to ask questions of particular speakers after the delivery of a speaker's remarks. Outcomes of the listening session may include a follow-on request for comments or a further focused workshop.

The roundtable will be physically accessible to people with disabilities. Individuals requiring accommodation, such as sign language interpretation or other ancillary aids, should communicate their needs at least seven business days prior to the roundtable to Ms. Lakeshia Harley in the USPTO's Office of Policy and International Affairs at 571–272–9300, at [e-mail], or by postal mail addressed to: Mail Stop OPIA, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22314–1450, ATTN: Lakeshia Harley. Attendees joining in person should arrive at least a half hour prior to the start of the roundtable and must present a valid government-issued photo identification upon arrival.

Request for Comments

You may submit written comments as follows. For reasons of government efficiency, comments must be submitted through the Federal eRulemaking Portal at www.regulations.gov. To submit comments via the portal, enter docket number PTO–C–2023–0034 on the homepage and select “search.” The site will provide a search results page listing all documents associated with this docket. Find a reference to this request for comments and select on the “comment” icon, complete the required fields, and enter or attach your comments. Attachments to electronic comments will be accepted in Adobe® portable document format (PDF) or Microsoft Word® format. Information that the submitter does not desire to make public, such as an address or phone number, should not be included in the comments because comments will be made available for public inspection. Visit the Federal eRulemaking Portal for additional instructions on providing comments via the portal. If electronic submission of comments is not feasible due to a lack of access to a computer and/or the internet, please contact the USPTO using the contact information below for special instructions regarding how to submit comments by mail or by hand delivery.

Comments containing references, studies, research, and other empirical data that are not widely published should include copies of the referenced materials. All submissions, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. The Agencies will not accept comments accompanied by a request that part or all of the material be treated confidentially because of its business proprietary nature. Therefore, do not submit confidential business information or otherwise sensitive, protected information.

FOR FURTHER INFORMATION CONTACT:

Mr. Chris Hannon, at 571–272–7385 or Mr. Anthony Quinn, at 202–893–6488. Inquiries can also be sent to [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

On May 4, 2023, the White House released the United States Government National Standards Strategy for Critical and Emerging Technology (“the Strategy”). The Strategy calls for a whole of government approach to reinvigorate our rules-based and private sector-led approach to standards development. The Strategy seeks to prioritize efforts for standards development that are essential for U.S. competitiveness and national security including communication and networking technologies, semiconductors and microelectronics, artificial intelligence and machine learning, biotechnologies, clean energy, and quantum information technologies, to name a few. The Strategy highlights the importance of widely adopted standards as they facilitate access and growth in new markets and support new market entrants.

As a means to achieve increased U.S. private and public engagement with standard development organizations, the Strategy identifies the following four objectives: (1) investment, (2) participation, (3) workforce, and (4) integrity and inclusivity. Each objective is accompanied by particular lines of effort, such as helping to remove and prevent barriers to private sector participation in standard development, improving communications between public and private sectors on standards, and educating and empowering the new standards workforce.

Pursuant to a Request for Information on Implementation of the United States Government National Standards Strategy for Critical and Emerging Technology, Docket No. NIST–2023–0005 ( https://www.federalregister.gov/​d/​2023-19245), the Agencies are seeking feedback on issues that stakeholders face at the intersection of standards and intellectual property, especially small and medium enterprises (SMEs). SMEs are encouraged to self-identify in their comment submissions. The listening session and stakeholder feedback received will be used to narrow the scope of future collaborative efforts between the Agencies and with stakeholders.

II. Focused Listening Session

The purpose of this listening session and request for comments is to obtain public input on areas for ITA–NIST–USPTO collaboration and engagement related to the Strategy. We are seeking feedback from a broad group of stakeholders, including, but not limited to, private sector companies, standards bodies and entities that participate in them, licensors and licensees of standardized technologies, academia and the general public. To facilitate stakeholder feedback, questions are provided below. These questions are not meant to be exhaustive, and stakeholders are encouraged to address these and/or other related issues and to submit research and data that inform their comments on these topics. Responses to these questions may result in the need for additional workshops, hack-a-thons, or events to solve the identified challenges.

III. Questions for Public Comment

Respondents may address any, all, or none of the following questions and may address additional related topics that implicate the intersection of standards and intellectual property rights. Please identify, where possible, the questions your comments are intended to address. ITA, NIST, and the USPTO invite written responses from the public to the following questions:

1. Do the intellectual property rights policies of foreign jurisdictions threaten any of U.S. leadership in international standard setting, U.S. participation in international standard setting, and/or the growth of U.S. SMEs that rely on the ability to readily license standard essential patents?

2. If responding affirmatively to question 1, what can the Department of Commerce do to mitigate the effects of any adverse foreign policies relating to intellectual property rights and standards? Please clearly identify any such adverse foreign policies with specificity.

3. What more can other entities do, such as standards development organizations, industry or consumer associations, academia, or U.S. businesses to help improve American leadership, participation in international standard setting, and/or increased participation of small to medium-sized enterprises that rely on the ability to readily license standard essential patents?

4. Are current fair, reasonable, and non-discriminatory (FRAND) licensing practices adequate to sustain U.S. innovation and global competitiveness? Are there other international models which would better serve U.S. innovation in the future?

5. Are there specific U.S. intellectual property laws or policies that inhibit participation in standards development?

6. Are there specific U.S. intellectual property laws or policies that inhibit growth of SMEs that rely on licensing and implementing standards?

7. Which, if any, actions would be advisable for the Department of Commerce to further explore regarding the interplay of intellectual property and standards, including but not limited to:

a. educational guidance to SMEs to become more involved in standards;

b. recommendations for standards development organizations regarding intellectual property policies and enforcement thereof;

c. a database of judicially determined or otherwise voluntarily-made-public licensing rates for technologies covered by a FRAND commitment; and

d. other voluntary and/or public disclosures?

8. How can the Department of Commerce reinforce the importance of IP-based incentives for participation in international technology standards development, especially around critical and emerging technologies?

9. What can the Department of Commerce do to mitigate emergence or facilitate the resolution of FRAND licensing disputes? Can requiring further transparency concerning patent ownership make standard essential patent (SEP) licensing more efficient? What are other impediments to reaching a FRAND license that the Department of Commerce could address through policy or regulation?

10. Are there steps that the Department of Commerce can take regarding intellectual property rights policy that will help advance U.S. leadership in standards development and implementation for critical and emerging technologies?

11. Do policy solutions that would require SEP holders to agree collectively on rates or have parties rely on joint negotiation to reach FRAND license agreements with SEP holders create legal risks? Are there other concerns with these solutions?

12. What can the Department of Commerce do to help facilitate the efficient resolution of FRAND disputes? What can the Department of Commerce do with the World Intellectual Property Organization and/or standard setting bodies to promote alternative dispute resolution to more efficiently resolve FRAND disputes?

Katherine K. Vidal,

Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.