A Handbook of Contemporary Research
Edited by Toshiko Takenaka
Chapter 26: Patenting Industry Standards
Vincent F. Chiappetta Introduction Patents and industry standards are economic double-edged swords. Properly wielded they enhance efficient market performance, but when deployed with inadequate care they become powerful engines for monopoly profits. When patents control access to an industry standard, achieving the proper balance becomes an extremely complex and challenging task.1 This chapter examines the evolving legal effort to help get that outcome ‘just right’.2 Two key considerations guide the appropriate legal response to patent capture of an industry standard. First, patents and standards inherently conflict. Standards generally contemplate benefits from widespread adoption, which patent law intentionally constrains to foster its objectives. Legal regulation of their co-existence, therefore, must distinguish between the patent system’s legitimate competitive costs and those that go beyond. Second, standardization can come about in different ways – ex post from accumulated market transactions over time or ex ante as either the intentional joint creation of industry participants or in the form of a government mandate. These varying sources raise distinct practical and policy concerns, and so a one-size legal approach does not fit all. 1 The same issues arise with regard to other kinds of intellectual property rights, such as copyrights on software code or trade-secret enhancements of related processes. Cf. Pamela Samuelson, Questioning Copyrights in Standards, 48 B. C. L. REV. 193 (2007) (discussing the capture problem when governments adopt privately drafted standards subject to copyright protection). Patent law’s uniquely powerful exclusionary right makes patent capture of particularly significant concern. 2 See, e.g., U.S. DEP’T OF...
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