Standardization and Patent Law – Is Standardization a Concern for Patent Law?

Nari Lee, Munich IP Law Center; Hokkaido University-Law; University of Joensuu - Faculty of Law

10/09/2009
(Original Publish Date: 10/1/2004)

Technical standards that facilitate interoperability are believed to be crucial in the growth and development of the network and computer industry. In a modular and globalized economy, it is believed that the development of compatibility standards benefit from being widely accessible. On the other hand, as intellectual property is based on the idea of exclusion and creates incentives for the right holder to arbitrarily discriminate the access to the protected information, it seems to be inherently incompatible with the efficient development of public, non-discriminatory and well-understood compatibility standards. Literature studying standardization invariably discuss this problem from various angles. However the relationship of standardization and intellectual property from the point of law has only been started to be of concern, as some of the more onerous business practices, such as hold-up or industry standard capture problem began to surface, in a anticipatory standardization. Most of these comments focus on the strategic use and abuse of intellectual property prior to, during and after the setting of the standards, either by an organisation or by a dominant firm, suggesting solutions mainly from contractual, or antitrust or competition law perspective. This paper argues that intellectual property law based solution should accompany these, with the example of patent law, and attempts to identify the aspects of patent law where the solutions to these problems could be based on. This is because often patent law includes specific tools of regulating uses beyond the grants of patents. As the problems are caused by some of expansionary shifts in the doctrines within patent law discipline, it is possible to devise the solution within the discipline of patent law. In sum, standards and standardization should be a concern for patent law.