Standards, Patents, and the National Smart Grid

Abstract

The U.S. federal government has in recent years adopted a relatively hands-off approach to the development of technical standards, deferring in large part to the efforts of privatelyorganized standardization efforts.1s Such deference has characterized both federal procurement and agency rulemaking activity.l4 By the same token, the federal government has recognized a number of key technology areas in which the federal government should take a "convening and/or activeengagement role" to "ensure a rapid, coherent response to national challenges."16 One of these areas is the Smart Grid. Given the critical importance of the Smart Grid, it is imperative that the governmental agencies overseeing the identification and development of Smart Grid standards take appropriate measures to ensure that broad, national implementation of standardized Smart Grid technology is not hindered either by undue economic burdens or the threat of costly and disruptive litigation.16 To this end, in this Article I lay out a number of legal options available to the U.S. federal government for addressing potential patent encumbrances on Smart Grid standards. These range from relatively modest measures such as priority-setting within existing regulatory frameworks to more interventionist approaches, such as federal march-in rights, compulsory licensing, legislative exclusions of injunctive relief and the formation of patent pools. It is hoped that this brief catalog of options will offer useful assistance to federal policy makers seeking to preserve this strategic national resource.