Antitrust, Intellectual Property and Standard-Setting Organizations

Abstract

Standard-setting organizations (SSOs) regularly encounter situations in which one or more companies claim to own proprietary rights that cover a proposed industry standard. The industry cannot adopt the standard without the permission of the intellectual property owner (or owners). How SSOs respond to those who assert intellectual property rights is critically important. Whether or not private companies retain intellectual property rights in group standards will determine whether a standard is "open" or "closed." It will determine who can sell compliant products, and it may well influence whether the standard adopted in the market is one chosen by a group or one offered by a single company. SSO rules governing intellectual property rights will also affect how standards change as technology improves. Given the importance of SSO rules governing intellectual property rights, there has been surprisingly little treatment of SSOs or their intellectual property rules in the legal literature. My aim in this article is to fill that void. To do so, I have surveyed the intellectual property policies of dozens of SSOs, primarily but not exclusively in the computer networking and telecommunications industries.