Re-Constructing Intellectual Property Law in a Knowledge Society
Edited by Thomas Riis
Chapter 7: More competition-law-FRANDly IPR policies: a solution to SSOs’ problems of self-governance?
The link between innovation and economic growth has been widely acknowledged. So it comes as no surprise that the promotion of innovation has become a priority of company strategies and government policies. A major regulatory challenge in this paradigm is to craft a well-balanced design of competition law and intellectual property (IP) in a way which allows this Schumpeterian insight concerning innovation economics to be applied consistently. So far it has often been argued that equating intellectual property rights (IPRs) to conventional property rights in the course of antitrust assessment constitutes a proper approach which encourages methodological consistency. However, some examples of ongoing litigation concerned with the exercise of the FRAND_encumbered standard essential patents (SEPs) leave the impression that competition authorities might be departing from this approach and moving towards more IP-specific antitrust analysis. Furthermore, chief economists of the EU Commission and the Federal Trade Commission (FTC) have recently made some proposals for possible reforms to the IPR policies of standard setting organizations (SSOs). In their article, they strongly emphasize the adverse impact of opportunistic behaviour within standardization since such behaviour can harm consumers and threaten the incentive to innovate. They also assert that SSOs have the responsibility to ensure that this risk is mitigated through an IPR policy that properly addresses this issue. This context gives rise to related claims that many existing SSO policies are not strong or clear enough to achieve this goal.
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