On September 11, 2023, the U.S. Patent and Trademark Office (“PTO”), International Trade Administration (“ITA”) and National Institute of Standards and Technology (“NIST”) jointly published a request for comments in the Federal Register seeking input from stakeholders on issues related to standards and intellectual property, especially as they impact small and medium enterprises in critical and emerging technologies. After an extension of time, public comments were due on November 6, 2023.
I published two posts related to that request, Input on the United States Government National Standards Strategy for CET - Part 1 (sepessentials.com) and Input on the United States Government National Standards Strategy for CET - Part 2 (sepessentials.com), and then decided to submit a comment that is based on those posts. You can find all of the comments here: https://www.regulations.gov/docket/NIST-2023-0005/comments. Mine is ID NIST-2023-0005-0021.
This is the first time I have personally submitted comments and it has been interesting to see the other comments received. Several of them are incoherent but many are well thought out and interesting.
A number of themes emerge from the submissions, including the following:
SMBs (and others) often lack the resources and know-how to participate in standards development. The government can play a role in encouraging SMB participation in standards development by subsidizing SMBs’ participation. As one comment from a biotech association (ID NIST-2023-0005-0008) concisely stated: “Smaller organizations do not have the time, money, and personnel to dedicate to standards development. To engage such organizations equitably requires incentives and supportive systems in order to ensure their perspectives are captured with reduced cost, especially compared to larger companies or those with more resources.”
Government should collect and promulgate data related to standards and host meetings and use other forums to disseminate information:
Fundamentally, participation in standards development activities are limited by two main factors: resources and available data. Both are critical to the development of high quality standards that can simultaneously promote safety and innovation on a global stage. The dearth of available resources impacts both private and public involvement in standards development. Increasing participation of Regulator subject matter experts in the standards development process, including travel to and attendance at meetings, is one way to support this effort. Additionally, there is a government/regulator role to address the scarcity of available data by serving as a neutral party to compile and share data in a manner that protects intellectual property and national interests while simultaneously providing necessary input into the standards development process. ID NIST-2023-0005-0011 (this comment is from a startup in a highly regulated industry).
The USG can provide one central place for consolidated communications, that includes the ability to receive feedback from stakeholders across sectors to address gaps in CET standards development, e.g., a website with a posting board. This website could have multiple uses by serving as the place to publish updates, ongoing activities, and other related CET standards information. Generally, the USG can bolster engagement in standards development and adoption by providing platforms to host standards, standards related data, and resources for assessing standards compliance. This would be much more effective than relying on the private sector to share or report on standards and development activities on their own, using their own resources. ID NIST-2023-0005-0008.
The most formidable challenges facing the private sector are education on the standards development process and resources. These issues can be addressed by developing seminars, webinars, networking events, and more to educate all stakeholders on the importance of CET standards, the development process, and how interested parties can get involved in CET activities. ID NIST-2023-0005-0029.
A number of comments, particularly from commentators in highly regulated industries, stressed the importance of government participation in standards development in order to ensure that a standard is not blocked after development on the regulatory side.
SAE would welcome U.S. Government representatives in all our standards development committees and with respect to this question, we can identify standards committees beginning activity on CET and applications. U.S. Government representatives are welcome to join these and witness the process of developing a work plan, road map, and initial committee documents. SAE would welcome input from U.S. Government representatives specifically, but not limited to regulatory acceptance and government conducted consumer information programs such as the New Car Assessment Program of the National Highway Traffic Safety Administration. ID NIST-2023-0005-0015 from SAE.
A number of comments noted the importance of prioritizing domestic and international standards coordination and harmonization and making sure the US has a say in international standards development.
The influence that entities like ETSI have on international standards related to communications, artificial intelligence, and cybersecurity cannot be underestimated. This organization has established significant working groups in multiple facets of each of these technical areas all with the specific objective of European standardization. Given that emphasis, this is also to the benefit of Europe itself. Notwithstanding the global benefit derived from this work, the U.S. Government has less influence in this work than that of other non-European governments. Asian commercial entities with European footprint are quite active and the government influence into these entities is, by definition and by policy, more substantial than that in the U.S. The U.S. Government may not have the luxury to participate directly in ETSI working groups but must increase influence to address the resulting gap. ID NIST-2023-0005-0024 (from Keysight Technologies).
Many different standards developing bodies—both U.S.-based and international—will pursue standardization in CET areas, so U.S. participants need to make a concerted effort to not duplicate other activities and collaborate where possible. Having multiple standards with a similar scope will create issues for standards users because requirements may vary or contradict, thus complicating compliance. ID NIST-2023-0005-0029 (from the American Petroleum Institute).
Several comments noted that the burden of SEP licensing and the inconsistency in the way FRAND commitments are interpreted creates real barriers to implementation of certain standards, particular for SMBs.
While strengthening the standards system’s foundations and mitigating barriers to U.S. participation in standards are important, it is also critical that the NSSCET implementation focus on addressing well-known barriers to the use of standards which, if unaddressed, stand to defeat the entire NSSCET. Specifically, in implementing the NSSCET the U.S. government should address the abusive standard essential patent (SEP) licensing practices carried out by some SEP holders who, despite offering to license their SEPs on fair, reasonable, and non-discriminatory (FRAND) terms in exchange for their patents’ inclusion in standards, abuse the market power gained through standardization to demand excessive royalties, threaten market exclusion through injunctions or exclusion orders, or otherwise exclude potential licensees, holding up standards based innovation for critical U.S.-based markets. ID NIST-2023-0005-0033 (this one is from a collection of organizations).
As a result, SMBs like us that have limited resources and experience in SEP licensing, and very often have a single product line, face the Hobson’s choice of accepting supra-FRAND terms in SEP licensing agreements under a non-disclosure agreement (NDA) or leaving the market entirely. While these SEP abuses are well known in the telecommunications sector, we now face them in new sectors leveraging the power of the internet of things (IoT), such as automotive, health, precision agriculture, and others. I therefore encourage ITA, NIST, and USPTO to facilitate a whole-of-government standards and SEP licensing policy that takes proactive steps to mitigate harmful SEP licensor practices which undermine the NSSCET, the U.S. economy, and U.S. leadership abroad. ID NIST-2023-0005-0010 (this one is from an SMB and the bold is in the original).
Many commentators combined several of these ideas.
ITS America believes that we need to have better information sharing about standards and best practices. Once a standard for an emerging technology is developed, it needs to be proliferated across the transportation sector to all users of that technology, as smaller transportation agencies or technology deployers might otherwise be unaware of the new standard. NIST and its Federal partners are best positioned to coordinate standards sharing and education as part of a larger standards strategy. Additionally, standards for certain technologies can be expensive for smaller agencies to access – NIST should consider ways to help mitigate that financial cost to increase standards compliance, such as a broader government licensing system for standards. ID NIST-2023-0005-0016 from the Intelligent Transportation Society of America.
Here's a further overview of all of the comments which can roughly be grouped as follows:
1. Comments that focus on responding to some or all of the long list of questions posed in the request for information:
ID NIST-2023-0005-0008: Letter from the Engineering Biology Research Consortium (EBRC) which is part of part of the Task Force on Engineering Biology Metrics and Technical Standards for the Global Bioeconomy (https://www.engbiosgb.org/). Focus is on engineering biology and the biotech industry. Although I practice in the high-tech field and not in biotech, it’s a very interesting letter and well worth a read with several good ideas about how the US government and NIST can support standards development. Biotech has not been a highly standardized industry, but the letter posits some areas where it believes standardization would be useful. Although not stated explicitly, some of it appears to be trying to use standardization as an end run around some of the EU directives. Will the next decade be the decade of biotech standardization?
ID NIST-2023-0005-0009: letter from “the ANSI-accredited U.S. Nuclear Technical Advisory Group (NTAG) for ISO/TC 85 and the technical advisory groups for ISO/TC 85 Subcommittee 2 (Radiological Protection), Subcommittee 5 (Nuclear installations, processes and technologies) and Subcommittee 6 (Reactor Technology).” As one would imagine, it focuses on nuclear technology.
ID NIST-2023-0005-0011: Letter from Wisk, a startup developing autonomous eVTOL aircraft for use as air taxis. Emphasizes the need for regulators to be involved in standards development in order to ensure that investment in new technology and standards development is not wasted. “It is imperative that federal subject matter experts, particularly those within the regulatory agencies (e.g., the Federal Aviation Administration, FAA) are appropriately trained and empowered to participate constructively in standards development activities.”
ID NIST-2023-0005-0012: letter from the American Nuclear Society (ANS) Standards Board on behalf of the ANS Standards Committee. Focuses on civilian nuclear energy but does include some concrete examples of how standardization works in ANS, including multiple reminders that standardization relies upon volunteers.
ID NIST-2023-0005-0013: letter from the MITRE Corporation. Answers the questions but does comment that: “We do, however, recognize that the current Request for Information (RFI) poses questions that are very detailed in nature compared to the high-level scope of the NSSCET. While responses to these questions will offer valuable insights, the connections between them and the NSSCET’s objectives and lines of effort are not always apparent. We suggest a stronger focus on the important intermediate space between the overarching strategy and these finer details.” A sensible suggestion.
ID NIST-2023-0005-0015: Letter from SAE International, an ANSI accredited open mobility standards development organization. Basic but useful suggestions on how the US government can help by identifying technologies and stakeholders for which standards are needed, doing outreach to SMBs, funding research and standards development and coming to meetings.
ID NIST-2023-0005-0016: Letter from the Intelligent Transportation Society of America (ITS America) which is an advisory council to the US Department of Transportation. It focuses on transportation technologies and identifies some issues that are important to highly fragmented, industries with many diverse and unsophisticated stakeholders. For example, it identifies the need for better information sharing about standards and best practices since “smaller transportation agencies or technology deployers might otherwise be unaware of the new standard.” A good reminder that not every industry has the same needs when it comes to standardization.
ID NIST-2023-0005-0018: letter from the Federation of American Scientists. “The Federation of American Scientists (FAS) is a catalytic, non-partisan, and nonprofit organization committed to using science and technology to benefit humanity by delivering on the promise of equitable and impactful policy. FAS believes that society benefits from a federal government that harnesses science, technology, and innovation to meet ambitious policy goals and deliver impact to the public.” Focuses on the need for standards in biotechnology, particularly in biomanufacturing, for reliability and simplification of processes.
ID NIST-2023-0005-0019: letter from Lawrence Berkeley National Laboratory. Focuses on answering the questions in a non-industry specific way. Interestingly, has some of the same ideas for what the US government can do to support standards as in my comment, although stated in a different way.
ID NIST-2023-0005-0020: letter from the National Electrical Manufacturers Association (NEMA) which “represents over 300 electrical equipment and medical imaging manufacturers.” Has some important things to say about the need for U.S. participation and leadership in international standardization efforts.
ID NIST-2023-0005-0022: in a bit of double dipping, this one is a letter from MITRE Engenuity, LLC which is a subsidiary of MITRE Corporation (see comment ID NIST-2023-0005-0013). Despite the double-dipping, this one has some interesting things to say. “Standards represent a common agreement on how something should be done. However, the true value of having a standard is that once a common means of doing something is understood all organizations can direct their collective efforts in the same direction. This creates faster cycles of improvement across the industry vs. individual company solutions.”
ID NIST-2023-0005-0024: comment from Keysight Technologies, Inc. (which is a test and measurement company). Some pointed comments about the need for more US involvement in important international SSOs such as ETSI and the ITU. “Failing to participate in the standards development process will leave the door open to other countries for stronger influence in worldwide critical standards, like next generation mobile communications.”
ID NIST-2023-0005-0025: personal comment from an individual who from a brief web search appears to be a member and/or hold a leadership role in certain committees and/or subcommittees of the American Society for Testing and Materials (ASTM) SDO.
ID NIST-2023-0005-0026: comment from the Open Group. Somewhat self-focused (talks a lot about the Open Group’s activities) and not terribly insightful. Not worth the time to read it.
ID NIST-2023-0005-0028: comment from the Software & Information Industry Association. Discusses some of the challenges for startups in participating in standards development, but less developed than many of the comments on how government can help.
ID NIST-2023-0005-0029: comment from the American Petroleum Institute. Has a number of concrete and rationale proposals for how the US government can aid standardization efforts.
2. Comments that focus on the FRAND commitment and/or SEP licensing practices:
ID NIST-2023-0005-0006: a paper written by Stanley M. Besen, a “Senior Consultant” at Charles River Associates titled: “Looking for FRAND: Patent Owners, Standard-Setting Organizations, and the Courts.” Not exactly on point for the topic but an interesting analysis of the problems of not properly policing FRAND commitments.
ID NIST-2023-0005-0010: Comment from BadVR about SMBs and the harm from abusive licensing practices.
ID NIST-2023-0005-0033: comment from ACT/The App Association, Public Innovation Project, Alliance for Automotive Innovation, European Association of Automotive Suppliers, Public Knowledge, Public Interest Patent Law Institute, Computer and Communications Industry Association and the European Association of Meter Manufacturers. Asks the government, among other things, to take steps to ensure that the FRAND commitment means that the SEP holder must license anyone who uses or wishes to use a standard and limits the availability of injunctions.
3. Comments that go (somewhat) their own way, e.g. those that do not focus on answering the questions but do focus on how the U.S. government can support standards in their industry:
ID NIST-2023-0005-0007: a letter from NI (formerly National Instruments and now of Emerson). The focus of the letter is on aligning the development of test and measurement tools, particularly those in critical and emerging technologies, with the changes and speed of change in those industries. The comment focuses on specific technologies that NI believes would be fruitful for collaboration with NIST and ANSI.
ID NIST-2023-0005-0017: letter from the National Defense Industry Association. Update existing standards to make them more flexible with less reporting obligations. Have NIST employees attend conferences to find out what is going on. Allow NIST to independently determine the issues that should be addressed by standardization and the prioritization to keep things moving quickly.
ID NIST-2023-0005-0023: from the Blockchain Association. Very blockchain/digital identity/asset focused with no humility at all: “The Association wishes to illustrate the revolutionary value and uniqueness of public blockchains. . .” Essentially it says (although not in exactly these words): we are super important so we should be allowed to go our own way (via private standardization) and those pesky regulators should keep off our backs. Not a good look people.
ID NIST-2023-0005-0030: more double dipping; another comment from SAE International (this one signed by the Senior Director of Standards while 0015 is signed by the Director, International Government Industry Technical Affairs, Global Ground Vehicle Standards). It takes somewhat of a different tact than the other SAE letter. Maybe there was an internal disagreement about what to say or maybe just a lack of coordination internally?
ID NIST-2023-0005-0031: comment from the City of New York that, not surprisingly, advocates for a larger role for local governments in standard development.
ID NIST-2023-0005-0032: comment that focuses on human rights and environmental due diligence standards in sourcing critical minerals. Signed by Earthworks, Earthjustice, Center for Biological Diversity, the Mennonite Central Committee, U.S and a public citizen. An important reminder of the need to keep human and environmental rights under consideration as new standards are developed and adopted.
4. Those that are very brief, incomplete, off-topic and/or incoherent:
ID NIST-2023-0005-0002: Brief and somewhat baffling response to one of the questions.
NIST-2023-0005-0003: Random biblical quote of no clear relevance.
ID NIST-2023-0005-0004: EMFs are dangerous to your health. I believe the intent was to say standards for EVs, HVAC systems and fossil fuel replacement should take that into account but that’s only implied.
ID NIST-2023-0005-0005: Failure mode and effects analysis should be part of every standard.
ID NIST-2023-0005-0014: Wind turbines need standards and there is a big backlog for blades.
ID NIST-2023-0005-0027: Supports using online forums and looks forward to future collaboration (unclear as to what).
ID NIST-2023-0005-0035: Very specific ideas about what types of network security should be required.
 Full disclosure, CCIA sponsors this blog, but the views expressed in this blog (and in my submission) are mine and do not necessarily reflect the views or positions of CCIA.