Chapter 5: Patent Laws and Standards
1. INTRODUCTION In Chapters 3 and 4, the patent issues in industry standards and the question of whether it is possible to resolve the conflict between patents and standards by applying the principles of competition laws or antitrust laws are examined. The issues can be classified into two categories: the issues of informal standards and those of formal standards. The issues of informal standards, which are generated by the market process, arise when the patent owner refuses to license his patents, covering some parts of industry standards, to others who hope to gain access to the patented technology. It is highly unlikely that the legal principles of competition laws such as the exceptional circumstances can be applied to these issues, except for some limited cases. The issues of formal standards, which are promulgated by standard setting organisations (SSOs), include those of informal standards and other issues such as the standard hold-up problem. This is where the patent owners refuse to have their patents included in standards and there is no alternative, so the patents block the standardisation process. Even though the legal principles of competition laws and antitrust laws may resolve some of the issues, they can only be used in limited circumstances. Then, how can the issues be resolved from the perspective of patent laws rather than competition laws? In general, patent laws grant exclusive rights to inventors and innovators in order to promote inventive and innovative activities. Indeed, the very essence of intellectual property in general and patents...
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