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Title: "Why Antitrust Should Defer to the Intellectual Property Rules of Standard-Setting Organizations: A Commentary on Teece & Sherry"
Author: Michael A. Carrier Assistant Professor, Rutgers University School of Law-Camden.
Publication Date: July 17 2005
Free/Fee: Free Access
Reads: 6429
Abstract: Standards offer significant benefits, such as enhancing product interoperability and increasing competition. But standards may not be utilized where the owner of intellectual property (IP) that is essential to the implementation of the standard refuses to license it. Not surprisingly, then, many standard-setting organizations (SSOs) have adopted rules restricting their members' use of intellectual property. These rules typically require members to search for, disclose, and license at a "reasonable and nondiscriminatory" rate any IP (usually patents) that is implicated by the standards. In their article, Standards Setting and Antitrust, David Teece and Edward Sherry thoroughly describe the IP rules adopted by SSOs and they question whether antitrust has a useful role to play in analyzing these rules. In this response, I agree with the authors' conclusion that antitrust should have only a limited role, but I draw more fully on the jurisprudence and rationales of antitrust to reach this result.