Kokoulina, Olga; Minssen, Timo --- "More competition-law-FRANDly IPR policies: a solution to SSOs’ problems of self-governance?" [2016] ELECD 950; in Riis, Thomas (ed), "User Generated Law" (Edward Elgar Publishing, 2016) 148

Book Title: User Generated Law

Editor(s): Riis, Thomas

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781783479559

Section: Chapter 7

Section Title: More competition-law-FRANDly IPR policies: a solution to SSOs’ problems of self-governance?

Author(s): Kokoulina, Olga; Minssen, Timo

Number of pages: 32

Abstract/Description:

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.