Private Proprietary Standards and Public Law: Invoking WTO’s Competition Dimension to Avoid Global Market Distortion

Yogesh Pai

6/11/2014
(Original Publish Date: 11/16/2012)

In today’s global economy driven by trade in knowledge intensive products, technical standards are set across borders and are meant for global consumption. However, private proprietary interests that currently dominate the national, regional and international standard-setting environment can cause considerable global market distortion. Private exclusivity preserved by patents is essential for the development of new technologies, while standardization ensures homogeneity and introduces product compatibility. However, the interaction between them viz., patents - ‘private’ and ‘exclusive’ v. standards - ‘public’ and ‘non-exclusive,’ is far from achieving coherence. This paper has examined problems arising from proprietary technical standards (termed as “standards-essential patents” - SEPs) at two different levels of normative inquiry, viz., a) national/regional or comparative law and policy that regulates issues concerning SEPs; b) international trade law and policy landscape governing technical standardization.