Judicio-Standardisation regime: Exploring the grounds for IPR paralysis

Tineke M Egyedi, Department of ICT, Delft University of Technology

1/01/2005
(Original Publish Date: 2000)

Increasingly, progress in standards committees is hindered by claims on the 'intellectual property' of contributions (patents, copyright, and trademarks). Standards bodies have developed rules to handle this problem and have learned to improvise, but tension between judicial regime and the standards regime remains. The judicial regime is the default regime for standardisation. Standards fora, therefore, incorporate parts of the legal system. What characterises the judicio-standardisation regime that results? Which views on property are embedded in the IPR rules of standards fora? How do these views relate to European and international law? What is the weight of compatibility for the sake of the public interest and the market in respect to 'property protection' in the judicial regime? Is the rationale behind relevant parts of the current legal regime foremost based on the primacy of ownership and market competition, and are there means to address supra-company public interests of compatibility? Java development and 'standardisation' is used to illustrate the problems that occur. It demonstrates three areas of concern. Firstly, the fear of ICT market players for IPR infringement during technology and standards development processes. Secondly, the role of IPR rules of standards bodies. Inappropriate IPR rules were, allegedly, Sun's reason to withdraw Java from ECMA. Thirdly, how law deals with intellectual property and compatibility issues (Sun vs. Microsoft lawsuit). The illustrations are based on data from expert interviews, literature, and observations during ECMA TC41 meetings.