Chiappetta, Vincent F. --- "Patenting Industry Standards" [2009] ELECD 261; in Takenka, Toshiko (ed), "Patent Law and Theory" (Edward Elgar Publishing, 2009)

Book Title: Patent Law and Theory

Editor(s): Takenka, Toshiko

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845424138

Section: Chapter 26

Section Title: Patenting Industry Standards

Author(s): Chiappetta, Vincent F.

Number of pages: 35

Extract:

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 regu-
lation of their co-existence, therefore, must distinguish between the patent
system's legitimate competitive costs and those that go beyond. Second, stan-
dardization 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 vary-
ing 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 stan-
dards subject to copyright protection). Patent law's uniquely ...