When standard-essential patents (SEPs) are in the news, it’s usually in the context of cellular or wireless networking standards. Maybe you’ve thought about how standards govern other things, ranging from audio-visual encoding standards like MP3 to threads on fire hydrants.
But what you probably don’t think about are voting machine standards.
Voting Machines and Standards
The issue came up at a recent meeting of the Technical Guidelines Development Committee of the U.S. Election Assistance Commission. The committee was discussing the next generation standard for voting systems. A member of the committee noted that patents that covered the standard might be a concern, and NIST Director Copan pointed to existing techniques for dealing with SEPs such as licensing on Fair, Reasonable, And Non-Discriminatory (FRAND) terms.
FRAND Isn’t Always Enough
It’s not clear that FRAND licensing would solve the problem, though—FRAND licensing relies on a voluntary commitment made by the patent owner when they contribute their technology during the standardization process. A patent owner who didn’t participate wouldn’t be bound by the FRAND promise. Given the committee’s limited membership, it appears likely that a number of relevant patents might not be owned by participants. That would mean that we might wind up with a U.S. government standard for voting systems that can’t be used without paying whatever rate the patent owner wants them to pay. And given that many states require the use of certified systems, that would put state election authorities in the position of choosing between complying with state law and paying exorbitant hold-up rates.
Injunctions, National Security, and Non-U.S. Patent Holders
The problem would only get worse if the STRONGER Patents Act became law. In particular, the STRONGER Patents Act places a significant thumb on the scale in favor of issuing injunctions. An injunction based on a patent covering a voting system standard could quite literally threaten the ability of much of the country to conduct elections. And of the 338,072 patents issued in FY2018, more than half—177,564—were issued to residents of foreign countries.
As we talk about SEPs and their potential national security impacts—the topic of an event on Tuesday, Oct. 15 in Washington, DC—and about patent policy more broadly, it’s important to keep in mind that we have a uniform patent system. While U.S. patents limit the behavior of U.S. entities, it might not be a U.S. entity who’s deciding whether and how to assert that patent.