Patent Challenges for Standard-Setting in the Global Economy Lessons from Information and Communications Technology (2013) / Chapter Skim
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1 Introduction
1 Introduction
Pages 15-30
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industry where issues involving these relationships especially rise to the fore because of the importance of licensing essential patented technologies across multiple uses. Standards are technical specifications that aid the development of certain beneficial features of products and services.
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Incorporating these patented inventions can result in a standard with better performance, improved cost effectiveness, or a better match with other design requirements. It is increasingly the case in ICT that some design requirements cannot be met at all without including patented technology.
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How SSOs operate varies widely across technologies and regions, as this report will demonstrate. In general, however, they seek to encourage or require member firms to both disclose and license SEPs, whether to fellow SSO members or non-member companies, under terms generally referred to as reasonable and non-discriminatory (RAND)
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Firms seeking to implement standards or develop improved technologies would necessarily infringe the patents embodied in those standards unless they have legal access through licensing. The associated questions of selection and disclosure of essential patents included in standards and the terms for licensing them are especially salient in ICT.
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Accordingly, the committee believes that its findings and recommendations with respect to ICT may have some value to participants seeking to anticipate issues that may be problematic in the future. There are many long-established SSOs, many with IPR policies operating in relatively mature sectors of the economy such as automobiles and aerospace (e.g., Society of Automotive Engineers)
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Another important context of the study is the growing concern that in some high-technology sectors the system faces increasing difficulties in effectively disseminating the use of patented technologies in key standards. The concern derives in part from the proliferation of high-stakes patent lawsuits involving SEPs in many countries and requests for injunctions to exclude alleged patent infringers from various national markets.
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The results of this survey are summarized in Chapter 2 of the report. Develop economic and legal analysis of critical issues surrounding management of intellectual property in SSOs, including the use and meaning of FRAND licensing.
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The committee believed that failing to address this question would not fulfill the terms of its task. Similarly, the committee decided early in its deliberations to discuss the question of whether and how national patent offices could fruitfully collaborate with SSOs in issues of prior art, affecting patent quality, and the recordation of patent transfers to enhance transparency in licensing SEPs.
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For example, if an outcome of the America Invents Act and recent court decisions is to raise the quality of issued patents -- i.e., increase the likelihood that they are truly novel and inventive -- then litigation associated with the validity of claimed SEPs could be reduced. Transparency of patent ownership, especially in the case of patent transfers, would enhance the transparency of FRAND licensing commitments, as we discuss later in this report.
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in the United States, interact with standards organizations. Many technologies, such as those in software and electronic communications, emerge from research in engineering work at both grant-supported laboratories and private firms, requiring cooperation and collaboration among these institutions to achieve standardization.
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Indeed, standards selection often involves difficult engineering decisions to achieve compatible specifications across a variety of complex technologies, while ensuring that any promulgated norms are compatible with user needs. Thus, especially in industries with multiple competing technologies it is necessary to have extensive upfront technical and management consultations to arrive at the most appropriate standards, the fundamental purpose of SSOs.
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Several de vices implementing IEEE standards for wireless local area networks (Wi-Fi) and Bluetooth communications are critical components of complex computers and smartphones.
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has its own policy regarding disclosure of essential patents, licensing commitments, and in some cases, transfer of essential patents. Although standards creation and revision is in large part an engineering discipline, the outcomes of the engineering efforts are strongly influenced, and in some cases mandated by laws, regulatory practices, and judicial systems of the jurisdictions of the SSOs and places where the standards are implemented.
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Some use these assets primarily for defensive purposes, such as to establish a form of détente or enable voluntary cross-licensing of patents among companies, supporting their "freedom to operate" in the marketplace. Others use their patents to generate a stream of royalty revenues; acquire patents to exercise the right to exclude others from using their technologies, as authorized by patent laws; or view patents as assets that help enable financing or entry into new markets where competitors have patent portfolios as well.
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Third, the committee asked whether there are significant differences in laws and court opinions across jurisdictions regarding key elements of IP management in SSOs and firms. Such differences could arise, for example, in the areas of understanding the meaning of FRAND commitments, injunctive relief, transferability of licensing commitments, and public recording of patent transfers.
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30 Patent Challenges for Standard-Setting in the Global Economy hood, greater societal benefits are available from simply restricting or eliminating nationalistic policies and practices that unduly reduce competition and innovation, a role for national authorities.
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