2026 USTR 301 Report
- Marta Beckwith
- 13 hours ago
- 5 min read
The Office of the United States Trade Representative (USTR) recently released its 2026 Special 301 Report on “the adequacy and effectiveness of U.S. trading partners’ protection and enforcement of intellectual property (IP) rights.”[1] You can find the 2026 Report here: 2026 Special 301 Report.pdf ("Report"). Amongst the typical sections on counterfeiting, piracy and copying, there is a new section in the 2026 Report focused on standards.[2]
Let me start with what is good about the Report: it repeatedly acknowledges and emphasizes the need for transparency, fairness, predictability and due process in all things IP related. Indeed, it uses the word transparent (and its cognates) almost 60 times. For example, the Report repeats the same statement found in the 2025 Report that commits the USTR to encourage “trading partners to engage fully, and with the greatest degree of transparency, with the full range of stakeholders on IP matters” (p.11).[3]
The Report rails against “measures that are discriminatory, non-transparent, or otherwise trade-restrictive . . .” (p.25). It encourages U.S. trading partners “to provide appropriate mechanisms for transparency, procedural and due process protections, and opportunities for public engagement . . .” (p.26; see also p.32, 33, 34). It calls multiple countries to task because of concerns “regarding limited transparency and predictability.” (p.27). It lauds others because they have “committed to robust standards for transparency and fairness . . ." (p.34). It “urges” U.S. trading partners to “to adopt and implement effective and transparent procedures . . .” (p.37).
Similarly, when it comes to standards, the Report recognizes that the “efficient, transparent, and predictable licensing of patents essential to a technical standard is critical for both innovative companies engaged in developing standards and contributing their technology to such standards, as well as companies needing a license to integrate such standards into their products.” (p.39). In other words, the Report states laudable goals: to ensure that U.S. trading partners support efficient, non-discriminatory, predictable and transparent SEP licensing, and have fair and transparent enforcement mechanisms that provide suitable due process protections in any enforcement action.
However, in a through-the-looking-glass kind of way, the Report fundamentally misidentifies and misconstrues what stands in the way of achieving these goals. The Report identifies several “emerging global trends” as having “the potential to improperly and unfairly harm U.S. innovators.” (p.39). According to the Report, these include:
“overbroad” anti-suit injunctions by which they mean anti-suit injunctions granted in one jurisdiction that prohibit U.S. entities from enforcing their patent rights in a different jurisdiction;
courts that assert authority to set global SEP licensing rates; and
jurisdictions that have “categorical or near-categorical prohibitions on injunctive relief for patent infringement—whether by legislation, foreign agencies or courts, or multinational tribunals— particularly in the standard essential patent context.” (p.39-40).
The Report claims that "[e]ach of these trends adversely affects U.S. innovators and patent holders and tilts the playing field in favor of foreign companies . . .” (p.40).
Let’s take a closer look at this claim. Germany is a country that generally does not issue overbroad anti-suit injunctions, at least in the sense meant by the Report. German courts do not claim to be able to set global FRAND rates (or even FRAND rates for German patents). German courts issue essentially automatic injunctions for patent infringement and do so particularly in the context of SEPs (e.g., Judge Schoen’s recent pronouncement that German courts do not need to even consider proportionality in the context of FRAND committed SEPs).
On the other hand, a U.S. court was the first to issue an anti-suit injunction that prevented a SEP holder from litigating its patents in a different country. U.S. courts have set global FRAND rates (albeit usually by agreement of the parties). U.S. courts nearly always reject injunctions in the context of FRAND committed SEPs.
So the U.S. system is exactly what the Report claims harms innovation and the German system is what the Report claims fosters innovation. And yet, when you think of an innovative country, a country full of inventors and patent holders, do you envision Germany or do you envision the United States? Other than possibly “German precision engineering” in old fashioned gas-engine automobiles,[4] I for one cannot think of a single high-tech industry in which Germany is more innovative than the U.S. This alone undercuts the Report’s conclusion that a system more like Germany’s supports and fosters innovation.
In addition, over the last decade or so, the German legal system (and now increasingly the German-aligned Unified Patent Court) has been used over and over again by non-U.S. entities to harm the interests of innovative American companies. I have discussed this previously (for example see, Just Say No to the "Restore" Act). As I explained in that post, “Foreign companies have been using the German legal system to extract unfair and unjust payments for FRAND committed SEPs from American (and other) companies for years.”
Had the USTR examined the evidence rather than reaching its conclusions based on not much of anything (at least nothing that is discernible from the Report), it would have reached the opposite conclusion. The type of legal system that the Report claims would be beneficial to U.S. innovation has, in fact, been quite harmful to U.S. innovation and inventive U.S. companies.
There are many things the USTR could do to level the playing field for U.S. companies and support U.S. innovation and leadership. The USTR could seek to ensure that foreign courts do not automatically issue injunctions against innovative U.S. companies, particularly in SEP cases. The USTR could encourage U.S. trade partners to adopt laws that require courts to weigh the equities and consider the public good when determining whether an injunction should issue. The USTR could support the issuance of anti-suit injunctions that are intended to prevent SEP holders from seeking injunctions in jurisdictions that have not adopted laws requiring courts to weigh the equities or consider proportionality. The USTR could support transparency by pressing U.S. trade partners to set up online, publicly accessible, databases that include all court decisions. The USTR could work with U.S. trade partners to increase transparency in SEP licensing by urging adoption of effective mechanisms for discovery of licenses in enforcement actions.
The one thing that will not work to foster U.S. innovation is to encourage U.S. trade partners to make their legal system more like Germany’s. We have more than enough evidence that the German type of legal system unfairly disadvantages inventive U.S. companies and harms U.S. innovation. Instead of trying to make the U.S. trade partners' systems more like Germany’s, the Office of the U.S. Trade Representative should be seeking to encourage these trading partners to make their legal systems more like the United States’, particularly when it comes to SEPs.
[2] The 2025 Report did not have a section on standards. See, 2025 Special 301 Report (final).pdf
[3] A cite to a page number in a report means the page at the bottom of the page in that report.
[4] Which I think was a Volkswagen slogan. Even with respect to this, it seems like the German courts are working quite hard to try to crush German automotive ingenuity through the use of automatic injunctions.
