Limits on injunctions and exclusion orders (Prohibitive Orders). Under the IEEE's current patent policy, the owner of a standard-essential patent (SEP) that is required to use a standard under development can submit a letter of assurance (LOA) promising that it will offer to license the patent on fair, reasonable and non-discriminatory terms (RAND licensing commitment). The Revised Policy provides that a SEP owner may not seek a Prohibitive Order unless an infringing party fails to comply with a court order determining a reasonable royalty or other key patent issues, such as infringement and validity. The DOJ noted that the revision reduces the possibility that a SEP owner can use the threat of an injunction to hold up users of the standard for exorbitant royalty rates. The DOJ also explained that inherent in a RAND licensing commitment is a pledge not to exclude any standard user unless it first refuses to take a RAND license.

Greater clarity on reasonable royalty rates. Many parties who submit a LOA to the IEEE agree to license applicable SEP for a reasonable rate. The Revised Policy provides additional meaning on how to determine a reasonable rate for such patents, and defines a reasonable rate as appropriate compensation for use of each relevant patent claim, excluding the value, if any, resulting from the claim's inclusion in the standard. The DOJ explained that this provision reduces the possibility of SEP owners obtaining higher royalties than would have been possible before the standard was set. The DOJ further noted that the revision is consistent with recent decisions from the US Court of Appeals for the Federal Circuit emphasizing the importance of apportioning damages awards to reflect the asserted patent's incremental value added to a multi-component accused product (see Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201, 1323 (Fed. Cir. 2014)).

Requiring RAND licensing offers for any compliant implementer. The Revised Policy requires SEP owners to offer RAND licenses to any implementer of the applicable standard, regardless of whether the use in question involves an end-use product or components or sub-assemblies that are incorporated in end-use products. The DOJ explained that the revision provides greater assurance that all manufacturers and developers will have access to the necessary technology. It also stated that patent owners remain free to offer different royalty rates depending on the production level at issue.

Greater clarify on demands for reciprocal patent licenses. The Revised Policy allows a patent owner submitting a LOA to require reciprocal RAND licensing offers from any other entity who owns SEPs related to the relevant standard. The DOJ noted that this revision mitigates the possibility that a firm who takes advantage of another's RAND commitment can then engage in hold up by asserting patent claims it has refused to license on RAND terms.