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Title: "Selected Quantitative Studies of Patents in Standards"
Author: Ruth Bekkers
Justus Baron
Arianna Martinelli
Yann Meniere
Önder Nomaler
Tim Christoph Pohlmann
Publication Date: June 20 2014
Date Added: July 9 2014
Free/Fee: Free
Abstract: After an introduction into the principle data and methodology, this study starts by providing a quantitative overview of the general features of standard essential patents (also called SEPs). It considers the occurrence of essential patents, how their existence has developed over time, and how essential patents are distributed among SSOs, technology areas, standards, and owners (including their business models). It also considers the legal status of such patents, for example whether they are actually enforceable. The study continues with an analysis on how SEPs differ from 'regular' patents. To make a fair comparison, a matched control set of patents was developed. We consider and compare the citation performance, the family size, and the patent grant likelihood. The final four chapters of the study focus on a set of specific topics: (1) 'blanket disclosures', (2) essential patent transfer, (3) patent pools, and (4) and litigation.
Link: Full Text

Title: "Understanding patents, competition and standardization in an interconnected world"
Source: http://www.itu.int/en/ITU-T/ipr/Pages/Understanding-patents%2c-competition-and-standardization-in-an-interconnected-world.aspx
Publication Date: July 1 2014
Date Added: July 9 2014
Free/Fee: Free
Abstract: The publication provides government officials, private-sector executives and industry analysts of all disciplines with an overview of the current state of play in the interrelationship of intellectual property and standardization in the ICT sphere. Parts I and II provide the conceptual underpinnings of Part III, which analyses ensuing debates and litigation concerning the interplay of patents and standards. Part IV is relevant to current and potential participants in ITU's standardization work.

The publication explores recent years' uptick in litigation involving standard-essential patents (SEPs) and offers readers a basis with which to understand contemporary tensions and conflicts surrounding the inclusion of patented technology in standards. Patent holders' licensing their SEPs to standards implementers on reasonable and non-discriminatory (RAND) terms is a cornerstone of the standards development process. "Understanding patents, competition and standardization in an interconnected world" provides the introduction necessary to engage with ITU's ongoing evaluation of possible reform to the ITU-T/ITU-R/ISO/IEC Patent Policy and related Guidelines.

Link: Full Text

Title: "Copyright Termination and Technical Standards"
Author: Jorge L. Contreras
Andrew Hernacki
Source: University of Baltimore Law Review, Vol. 43(2), pp. 221-253 (2014)
Publication Date: June 24 2014
Date Added: July 9 2014
Free/Fee: Free
Abstract: Section 203 of the Copyright Act permits authors to terminate any grant of rights in a copyright between 35 and 40 years after the initial grant was made. In this article we analyze the application of Section 203 termination to technical standards documents, focusing in particular on the exclusion of works-made-for-hire, the treatment of joint works and derivative works. We conclude that, although Section 203 is theoretically applicable to technical standards, several statutory obstacles would impede the wholesale termination of standards-related license grants. Nevertheless, in order to avoid costly and time-consuming litigation, we recommend that Congress or the courts explicitly acknowledge the inapplicability of Section 203 to technical standards.
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Title: "Macroeconomic Causes and Effects of Formal Service Standardization"
Author: Paul Wakke
Publication Date: April 24 2012
Date Added: July 2 2014
Free/Fee: Free
Abstract: The paper aims at providing a sound understanding of the growing significance of service standardization at national standards bodies. Service standards arose mainly in the last years, so that former studies dealing with causes and effects of standardization focused on product standards or did not examine service standardization separately. Therefore, this paper embodies an exploratory, descriptive approach to explicitly discover the macroeconomic causes and effects of service standardization. The analysis uses panel data from 15 national standards bodies over 13 years. Four factors related to service standardization were derived from the literature: industry size, deregulation, innovation, and foreign trade in services. Impulse response analyses based upon panel vector autoregression were conducted in order to examine the proposed relations and to detect possible causality. In summary, service standardization is positively related to all factors. More detailed, service standardization is caused by the industry size as well as deregulation, while service standards positively affect the industry size, foreign trade, and innovation activities within the service industries. The results give rise to the assumption that the economics of service standards have not yet been fully exploited and that further growth in the significance of service standardization is to be expected.
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Title: "The TBT Agreement and Private Standards"
Author: Alessandra Arcuri
Source: Michael Trebilcock and Tracey Epps, eds., Research Handbook on the TBT Agreement, Edward Elgar Publishing, 2013
Publication Date: March 13 2013
Date Added: July 2 2014
Free/Fee: Free
Abstract: By 'standardizing' different and otherwise incompatible products, transnational private standards have contributed to enhancing the process of economic globalization. Today, however, questions are raised as to whether the burgeoning phenomenon of (transnational) private regulation is working as an impediment to free trade. One of the few international agreements explicitly addressing the standards adopted and implemented by 'non-governmental bodies' is the Agreement on Technical Barriers to Trade ('TBT Agreement'). Given the unremitting growth of private standards in the global regulatory space and their relevance for international trade, it is important to understand the role of the TBT Agreement in the ambit of private regulation. The main aim of this contribution is to clarify whether and/or to what extent the TBT Agreement can or should be applied to regulate private regulatory regimes, and in what ways the TBT Agreement already confers legal normativity on international private standards.
Link: Full Text

Title: "Wireless Networks: Technological Challenges and Policy Implications"
Author: Christopher S. Yoo
Source: U of Penn, Inst for Law & Econ Research Paper No. 13-31
Publication Date: November 6 2013
Date Added: July 2 2014
Free/Fee: Free
Abstract: Since June 2012, mobile wireless has emerged as the largest and fast growing medium for broadband service. At the same time, mobile wireless networks have proven considerably more difficult to manage than wireline networks. The primary causes are the rapid growth in demand for wireless bandwidth and the greater susceptibility of wireless networks to poor quality of service because of the omnidirectional propagation of wireless signals, bad handoffs, local congestion, and the susceptibility to complex interference patterns caused by multipath propagation. Moreover, the central inference underlying the primary form of congestion management is not valid for wireless networks. As a result, wireless networks adopt different approaches to error correction and congestion management than do wireline networks, which results in significantly heavier network management in ways that violate the Internet's commitment to the absence of per-flow state and its supposed adherence to the absence of prioritization. In addition, mobile networks put significant pressure on the routing architecture by requiring the use of Internet gateways for 3G networks, accelerating the pace with which the routing architecture changes, fragmenting the compactness of the address space, and relying on a mobile IP solution that depends on a home agent to serve as a proxy in the core of the network. Proposed solutions, such as the identity/locator split, represent significant deviations from the universal address architecture around which the current architecture is designed. These considerations support the Federal Communications Commission's decision to subject wireless broadband to a less restrictive version of its rule against unreasonable discrimination in its Open Internet Order.
Link: Full Text

Title: "The Role of International Actors in Post-Communist Countries: Coercion or Persuasion? The Transfer of Hospital Design Standards by International Organizations and Private Firms"
Author: Rodica Plugaru
Publication Date: August 28 2013
Date Added: July 2 2014
Free/Fee: Free
Abstract: This paper explores the role of international actors in post-communist transformation. By taking the case of hospital design standards, it explains how the national actors choose to leave aside the national regulations and to adopt foreign technical standards. The paper takes the case of technical standards employed for the modernization of healthcare facilities in Ukraine and Moldova. An in-depth comparative case study of two projects revealed that national architects of these post-soviet countries use foreign standards. While the change of standards is a similar outcome in both cases, the international actors involved are different. My findings suggest that while both international organizations and private actors diffuse foreign technical standards in post-soviet countries, the processes through which they realize it differs. Whereas international organizations dispose of coercive means to impose foreign solutions, private actors need to negotiate and to convince for their adoption. Drawing on recent debates on policy diffusion and transfer (Dolowitz and Marsh 2012; 2000, Simmons and al. 2008, Stone 2010, 2012), the results shed light on "carriers" of institutional arrangements among different political systems.
Link: Full Text

Title: "Standardized Terms and Conditions for Open Patenting"
Author: Mariateresa Maggiolino
Maria Lillà Montagnani
Source: Minnesota Journal of Law, Science & Technology, Vol. 14, No. 2, 2013 ; Bocconi Legal Studies Research Paper No. 2298593
Publication Date: December 1 2012
Date Added: July 2 2014
Free/Fee: Free
Abstract: After providing a legal characterization of the open patenting phenomenon and discussing many of the empirical and theoretical experiences that relate to both Open Innovation and defensive patenting, this paper suggests standardized terms and conditions that a patent license should contain in order to foster both the free movement of patented knowledge and its business applications.
Link: Full Text

Title: "How the Google Consent Order Alters the Process and Outcomes of Frand Bargaining"
Author: Elyse Dorsey
Matthew R. McGuire
Source: 20 Geo. Mason L. Rev. 979 (2013)
Publication Date: April 16 2013
Date Added: July 2 2014
Free/Fee: Free
Abstract: The Federal Trade Commission ("FTC") recently closed its investigation of Google, following a thorough analysis of numerous aspects of Google's business conduct. The Proposed Consent Order into which the FTC and Google tentatively entered has garnered significant attention from the antitrust and intellectual property communities for a number of reasons. One important reason is that the Proposed Consent Order places serious limits upon Google's ability to seek injunctive relief for its patents that are considered "standard-essential" and that are subject to fair, reasonable, and nondiscriminatory ("FRAND") commitments. This limitation reflects the emerging tendency of competition agencies to consider the threat or pursuit of injunctive relief a serious competitive concern when the patent at issue is standard essential and the patent holder previously agreed to license that patent on FRAND terms. Indeed, the issue of whether, and if so, under what circumstances, standard essential patent ("SEP") holders should be allowed to seek, and courts should grant, injunctive relief in cases involving FRAND bargaining has been the topic of considerable debate amongst intellectual property and antitrust scholars, as well. With the closing of its Google investigation, the FTC has joined the United States Department of Justice ("DOJ") in issuing official statements indicating that owners of SEPs who have agreed to bargain on FRAND terms may be subject to investigations and penalties simply for seeking an injunction against a member of the standard setting organization ("SSO"). This new approach portends a significant shift in the way FRAND negotiations are conducted and in the outcomes they produce. The goal of this Essay is to raise some concerns regarding this issue, and, in particular, to focus upon the potential consumer welfare effects of essentially removing the possibility of injunctive relief for FRAND-encumbered SEPs.
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Title: "Space Universal Modular Architecture (SUMO): Industry Consensus Interoperability Standards to Enhance Satellite Affordability and Energize the Space Industrial Base"
Author: Bernie F. Collins
Elisabeth A. Nguyen
Karen L. Jones
Source: Reinventing Space Conference
Publication Date: October 14 2013
Date Added: July 2 2014
Free/Fee: Free
Abstract: The Space Universal Modular Architecture (SUMO) is an effort initiated by the U.S. Office of the Director of National Intelligence (ODNI) to improve affordability of space acquisitions and promote space industrial base health. SUMO seeks to achieve its goals using data, electrical and environmental interoperability standards for spacecraft components to enable an increase in the responsiveness of the space marketplace. The ODNI vision is to foster government collaboration and industry consensus, bringing stakeholders together to create an agreed set of interface definitions. Technical experts are currently working eight subject areas to pave the way to standards development.
Link: Full Text

Title: "Developing a Framework to Improve Critical Infrastructure Cybersecurity (Response to NIST Request for Information Docket No. 130208119-3119-01)"
Author: Jorge L. Contreras
Publication Date: April 8 2013
Date Added: June 25 2014
Free/Fee: Free
Abstract: The National Institute of Standards and Technology (NIST) has issued a request for information (RFI) regarding its charge of developing a framework to improve critical infrastructure cybersecurity. As NIST correctly points out in the RFI, "[t]he national and economic security of the United States depends on the reliable functioning of critical infrastructure." The following two suggestions are offered in an attempt to aid NIST as it develops a national cybersecurity framework (the Framework) to reduce cybersecurity risks throughout the nation: 1. The Framework should expressly require public interest representation in developing and selecting standards for a national cybersecurity infrastructure. 2. The Framework should adopt approaches that prevent patent disputes from disrupting the broadest possible adoption of cybersecurity standards. Such approaches may include selecting standards for inclusion in the cybersecurity infrastructure only if patent holders have (a) agreed to offer licenses on a royalty-free basis, (b) consented to observe an aggregate royalty cap for all patents covering the standard, or (c) waived their rights to seek injunctive relief.
Link: Full Text

Title: "Implementing Procedural Safeguards for the Development of Bioinformatics Interoperability Standards"
Author: Jorge L. Contreras
Source: Northern Kentucky Law Review, Vol. 39, No. 2, 2012
Publication Date: November 2 2012
Date Added: June 25 2014
Free/Fee: Free
Abstract: In recent years, the field of bioinformatics has seen a surge of interest in the development of interoperability and compatibility standards. These range from standards for data exchange and controlled vocabularies (ontologies) to minimum experimental information and data analytics. To date, the bioinformatics field has been free of the standards litigation that has affected other technology-based industries. But with the increasing adoption of standards by bioinformatics researchers and vendors, the issues faced by other standards groups will become increasingly relevant. This article reports the results of an industry-wide study of bioinformatics standards development activities and the policies and procedures adopted by each such standards development organization. This study suggests that the majority of bioinformatics standards development organizations are ill-equipped to address or deter process abuse and patent hold-up. In many cases, these organizations either lack written policies entirely, or adopt vague, aspirational statements regarding a desire that materials produced to be "open" and publicly available. Accordingly, I recommend that bioinformatics standards-development organizations carefully review their existing policies and procedures. To the extent that they do not address key points regarding process openness and intellectual property, these policies and procedures should be revised. In order to assist organizations with this exercise, I offer a straightforward policy template that can be adapted to the specific needs and requirements of individual bioinformatics standards organizations. It is hoped that these modest prophylactic measures will enable the bioinformatics community to avoid the disruptive and costly standards-related litigation that has affected other industries.
Link: Full Text

Title: "Leveraging Information about Patents: Settlements, Portfolios, and Holdups"
Author: Mark R. Patterson
Source: Houston Law Review, Forthcoming Fordham Law Legal Studies Research Paper No. 2145403
Publication Date: July 19 2012
Date Added: June 25 2014
Free/Fee: Free
Abstract: Much recent scholarship focuses on the problems posed by uncertainty regarding intellectual property rights. In patent law, this uncertainty relates primarily to the scope and validity of patents, which plays an important role in litigation decisions. With assessment of the likelihood of litigation success difficult and the cost of defending a patent infringement suit high, alleged infringers may choose to settle or to cease the allegedly infringing conduct, even if the suit would ultimately show that the challenged conduct was permissible. In some patent cases, however, and particularly in some patent cases in the antitrust area, uncertainty plays an arguably more fundamental role. In these cases, including cases involving Hatch-Waxman pharmaceutical settlements and deception in the standard-setting process, the patentee gains its competitive advantage not just from its exclusive control over information about its patented invention, or even from the cost of challenging the patent, but directly from the unavailability of information about the patent. That is, much of the patentee's power derives directly from the uncertainty. Courts typically approach these cases as if they involved the same sorts of rights to exclude as in typical infringement cases. But the cases discussed in this essay are not typical infringement cases, because the patentees' innovations are basically irrelevant. For example, in the cases alleging failure to disclose patents before standard-setting bodies and later use of patent rights to "hold up" producers of the standardized products, there generally is no dispute that the standardized products infringe the patents at issue; instead, the dispute centers on the significance of the patentee's failure to disclose the existence of the patent. And in the cases regarding "reverse payment" settlements in the pharmaceutical industry, although validity and infringement are the underlying issues, the cases do not involve any evaluation of the inventions, prior art, or allegedly infringing products; instead, both the patentee and the alleged infringer use settlement agreements to prevent consideration of those issues, preserving the uncertainty from which they both benefit.
Link: Full Text

Title: "Standards Development, Disruptive Innovation and the Nature of Participation: Lock-In, Lock-Out, Holdup"
Author: John W. Bagby
Prasenjit Mitra
Sandeep Purao
Source: TPRC 2006
Publication Date: August 15 2006
Date Added: June 25 2014
Free/Fee: Free
Abstract: Standardization processes are quickly replacing regulation and competition as the primary method that technical specifications are deployed as rules, guidelines, or definitions of characteristics that ensure materials, products, processes and services are consistently fit for their purposes. Importantly, for Information and Communication Technologies (ICT), there is an evolution in the process used by standards-development organizations (SDOs) and this is changing the prevailing standards development activity (SDA) for ICT. The process is progressing away from traditional SDA modes: the legacy de jure standards promulgation by regulators that typically involve the selection from many candidates and existing alternative components. Increasingly, standards development is moving towards voluntary consensus consortia, venues in which there is a more design intensive crafting of standards that include a substantial design component, also known as "anticipatory" standards. Standards that include a substantial design component require increasingly important roles from organizational players as well as SDOs. These processes are increasingly characterized by the presence of intellectual property rights and collective behaviors alleged to trigger legal issues in antitrust, the First Amendment and tort law. An analysis of recent and likely influential series of holdup cases, such as the Rambus appeal, is also instructive. Few theoretical frameworks exist to understand these emerging processes. This research is influenced by the design, sense-making and negotiation (DSN) theoretical framework. DSN suggests viewing the new standards-setting processes as a complex interplay among these three forces. The DSN model provides the framework for measuring SDO progress and therefore understanding future generations of standards development processes. This research conducted archival analysis of SDO documents for a selected subset of web-services (WS) standards taken from publicly available sources including minutes of meetings, proposals, drafts and recommendations. This work provides a deeper understanding of SDAs, the roles played by different organizational participants and the compliance with SDO due process requirements emerging from public policy constraints, recent legislation and standards accreditation requirements. This paper examines the public policy principles in use to evaluate the due process mechanisms and checks and balances in SDA. These must be better understood to inform a critique of proposed reforms so they might accommodate efficiency, expertise and participation incentives. The empirically grounded results of our studies are useful foundation for other SDO modeling efforts.
Link: Full Text

Title: "ISO 26000 and the Standardization of Strategic Management Processes for Sustainability and Corporate Social Responsibility"
Author: Rüdiger Hahn
Source: Business Strategy and the Environment, 22(7), 442-455 (doi: 10.1002/bse.1751)
Publication Date: June 27 2012
Date Added: June 25 2014
Free/Fee: Free
Abstract: The standard ISO 26000 aims to provide guidance on social responsibility and help all types of organizations contribute to sustainable development. Such guidance is important since there is still no consistent understanding of what corporate sustainability and social responsibility (CSSR) encompass. Many companies lack a strategic approach to CSSR and instead follow unsystematic procedures; thus, formal strategic planning could improve operational efficiency. Against this background, the paper critically examines the contribution of ISO 26000 to the strategic management processes of different types of companies. This allows the potential of ISO 26000 for guiding companies on their path to sustainability to be identified. The analysis shows that the standard is most useful for beginners in CSSR. However, ISO 26000 does not cover the entire range of strategic management processes. Instead, the standard is especially helpful for internal and external analyses and in providing starting points for implementing sustainability strategies.
Link: Full Text

Title: "A Roadmap to the Smartphone Patent Wars and FRAND Licensing"
Author: Michael A. Carrier
Source: CPI Antitrust Chronicle, Vol. 2, April 2012
Publication Date: May 3 2012
Date Added: June 25 2014
Free/Fee: Free
Abstract: The smartphone industry today is characterized by a thicket of patents and wars based on those patents. Every day brings a new lawsuit or development between Apple, HTC, Microsoft, Motorola, Nokia, and Samsung. The lawsuits span numerous courts and several continents. This 5-page article attempts to make sense of the chaos, with a particular emphasis on standards and reasonable licensing ("FRAND") terms. It summarizes court rulings on whether injunctions should be granted on "standard essential patents" and "non-standard essential patents." And it discusses the European Commission investigations of Motorola and Samsung, and the Department of Justice's approval of the patent portfolio acquisitions of Novell, Nortel, and Motorola.
Link: Full Text

Title: "The Impact of Participation within Formal Standardization on Firm Performance"
Author: Paul Wakke
Knut Blind
Publication Date: April 24 2012
Date Added: June 25 2014
Free/Fee: Free
Abstract: Several studies highlight the economic benefits of standards, while the benefit of taking part in standardization remains a rather unexplored mystery to date. In theory, standard setters not only benefit from the possibility to monitor and shape the development of standards but also access a wide range of knowledge sources in the standards committee. Therefore, we investigate how the participation within formal standardization is related to the performance of 1,561 German companies. A Cobb-Douglas production function is estimated in order to use the Solow-residuals as indicator for the firm performance. Participation within formal standardization is measured by the number of committee seats within the German Institute for Standardization (DIN). Our results suggest that participation within formal standardization is in general positively related to the firm performance. More detailed analyses within the service industries revealed a striking pattern for technology-developing service providers insofar as for these companies only the combination of patenting and standardizing tends to be positively related to firm performance. Nevertheless, we interpret these results as a first indication for the microeconomic benefit of taking part in standardization.
Link: Full Text

Title: "Standardization of Standard-Form Contracts: Competition and Contract Implications"
Author: Mark R. Patterson
Source: William & Mary Law Review, Vol. 52, No. 2, p. 327, 2010 ; Fordham Law Legal Studies Research Paper No. 2010124
Publication Date: January 2010
Date Added: June 25 2014
Free/Fee: Free
Abstract: This Article addresses the issue of contract standardization by exploring the interaction of antitrust nd contract law in three basic respects. The first is substantive, focusing on product terms and considering standardization of terms both to reduce costs (interoperability standards) and to improve the contract (quality standards). This focus on terms is consistent with the antitrust approach of the Department of Justice, which has asked whether standardization involves "competitively significant" terms, but as the Article describes this standard is not well defined. The Article then moves to procedure, considering different contexts in which contract standardization occurs and discussing the implications of different means of negotiation. Third, the Article considers the possibilities both of voluntary adoption of contracts and of adoption incentives created by private organizations and by the state. The Article then draws on these discussions to suggest some analytical approaches to contract standardization.
Link: Full Text

Title: "Standardizing Social Responsibility? New Perspectives on Guidance Documents and Management System Standards for Sustainable Development"
Author: Rüdiger Hahn
Source: IEEE - Transactions on Engineering Management, 59(4), 717-727 (doi: 10.1109/TEM.2012.2183639)
Publication Date: March 9 2012
Date Added: June 25 2014
Free/Fee: Free
Abstract: In recent years there has been increasing pressure on private players to take over responsibilities for social/environmental issues. However, a critical mindset towards private enterprises and their influence on societies often prevails. To help organization deal with this ambiguity, the International Organization for Standardization (ISO) published ISO 26000 which provides guidance on the integration of social responsibility into management processes. The ISO emphasizes that ISO 26000 is not a management system standard. However, its practical value would be rather limited if it merely provided a common understanding of social responsibility instead of also facilitating management routines and practices. A closer look at its content indeed reveals some distinct elements of a management system standard. This brings up the following questions: What kind of standard is ISO 26000, which opportunities and constraints does ISO 26000 hold, and whether or not the current understanding of management system standards is sufficient to characterize ISO 26000? The paper comes to the conclusion that the current categorization of standards is not sufficient to fully comprehend ISO 26000. A new type of management system standard is developed. The potential benefits of the new standard, the managerial relevance, and specific limitations of ISO 26000 are discussed. Throughout this paper, ISO 26000 will be framed as a new type of management system standard. Hitherto existing management system standards aim at providing an efficient organizational management infrastructure. For an elusive topic such as SR however, values and principles within society are decisive factors for a successful implementation since they determine the expectations towards an organization. ISO 26000 seems to be able to integrate this normative input. It combines a process - and a content-focus derived from an extensive and inclusive development process. With its broadly accepted normative guidance, the standard provides organizations with valuable predictability regarding the social "license to operate" which businesses are often asked to acquire. This can help to lower transaction costs since it removes some of the process of finding the license to operate from individual negotiations between companies and society, to a more general and predictable footing by providing a universal standard. Furthermore, the emphasis on a continuous discoursive stakeholder involvement offers opportunities to constantly adapt and refine organizational practices. This could be of special value for potential users to meet the ever changing societal expectations for SR. The paper concludes by discussing the managerial benefits of using ISO 26000.
Link: Full Text

Title: "The Emergence of a Standards Market: Multiplicity of Sustainability Standards in the Global Coffee Industry"
Author: Juliane Reinecke
Stephan Manning
Oliver von Hagen
Source: Organization Studies, 33 (5/6), pp. 789-812, 2012
Publication Date: July 7 2012
Date Added: June 25 2014
Free/Fee: Free
Abstract: The growing number of voluntary standards for governing transnational arenas is presenting standards organizations with a problem. While claiming that they are pursuing shared, overarching objectives, at the same time, they are promoting their own respective standards that are increasingly similar. By developing the notion of 'standards markets,' this paper examines this tension and studies how different social movement and industry-driven standards organizations compete as well as collaborate over governance in transnational arenas. Based on an in-depth case study of sustainability standards in the global coffee industry, we find that the ongoing co-existence of multiple standards is being promoted by the interplay between two countervailing mechanisms: convergence and differentiation. In conjunction, these mechanisms are enabling the emergence and persistence of a market for standards through what we describe as meta-standardization of sustainable practices. Meta-standardization leads to convergence at the 'rules of the game' level, but allows also differentiation at the attributes level, which is enabling parties to create and maintain their own standards. Our study helps to advance the understanding of transnational governance by explaining the dynamics of competing and collaborating non-state actors in constituting a standards market.
Link: Full Text

Title: "Equity, Antitrust, and the Reemergence of the Patent Unenforceability Remedy"
Author: Jorge L. Contreras
Source: The Antitrust Source, October 2011
Publication Date: November 1 2011
Date Added: June 25 2014
Free/Fee: Free
Abstract: The conventional legal analysis of technical standard setting derives primarily from antitrust law. But antitrust remedies, taken alone, may not be broad enough to address recent abuses of the standardization process. The principal example of this shortcoming is the well-known case of Rambus, Inc., which, over the course of several years, was alleged to have concealed relevant patent applications from a standards organization in which it participated and then successfully sued the entire DRAM industry for royalties after the standard was "locked-in." Remarkably, Rambus prevailed in its litigation campaign despite aggressive enforcement efforts by the Federal Trade Commission. Rambus's success stemmed, in part, from inherent limitations of the antitrust theories asserted against it to reach its opportunistic behavior. Another tool for redressing deceptive conduct in the context of standard setting is the equitable remedy of patent unenforceability, the use of which was recently affirmed by the Federal Circuit in Qualcomm v. Broadcom. The Qualcomm decision marks an important advance in the law surrounding standards-based patent hold-up by making available a remedy that is not constrained by the narrow requirements of antitrust law and which is effective toward both defendants in private litigation and the broader community of standards implementers. Though not yet universally acknowledged as such, the remedy of patent unenforceability, when coupled with affirmative theories of liability, may offer the most effective tool available to address patent hold-up in standard setting, both for private litigants and, potentially, for public enforcement agencies.
Link: Full Text

Title: "ISO 9000: New Form of Protectionism or Common Language in International Trade?"
Author: Joseph A. Clougherty
Michal Grajek
Source: ESMT Working Paper No. 09-006
Publication Date: September 15 2009
Date Added: June 25 2014
Free/Fee: Free
Abstract: International standards have the potential to both promote and hinder international trade. Yet empirical scholarship on the standards-trade relationship has been held up due to some methodological challenges: measurement problems, varied effects, and endogeneity concerns. We are able to surmount these challenges while considering the impact of one particular standard on the country-pair trade flows between 91 nations over the 1995-2005 period. To deal with these challenges, we measure the degree of standardization via the penetration of ISO 9000 in individual nations, allow ISO diffusion to manifest via multiple (quality-signaling, information/compliance-cost, and common-language) effects, and use instrumental variable and panel data techniques to overcome endogeneity concerns. We find strong evidence in support of ISO 9000 involving a common-language effect that enhances country-pair trade; yet, the evidence is more mixed with regard to the quality-signaling and information/compliance-cost effects. While we find ISO-rich nations (most notably European) to clearly benefit from the worldwide diffusion of standardization, ISO 9000 represents a de facto trade barrier for nations (e.g., the US and Mexico) lagging behind in terms of adoption.
Link: Full Text

Title: "Questioning Copyright in Standards"
Author: Pamela Samuelson
Source: Boston College Law Review, Vol. 48, 2007 ; UC Berkeley Public Law Research Paper No. 925044
Publication Date: January
Date Added: June 25 2014
Free/Fee: Free
Abstract: The rise of the information economy has caused copyright law to become a new actor in the intellectual property rights and standards debate because standard-setting organizations (SSOs) increasingly claim copyrights in standards and charge substantial fees for access to and rights to use standards such as International Organization for Standardization (ISO) country, currency, and language codes and standard medical and dental procedure codes promulgated by the American Medical Association (AMA) and the American Dental Association (AMA). This article will consider whether standards such as these, especially those whose use is mandated by government rules, should be eligible for copyright protection as a matter of U.S. copyright law. Part I reviews several lawsuits that have challenged copyrights in numbering systems devised to enable efficient communication and will argue that the decisions upholding copyrights in the AMA and ADA codes were incorrectly decided in light of past and subsequent caselaw, the statutory exclusion of systems from copyright, and various policy considerations. Part II considers copyright caselaw and policies that have persuaded courts to exclude standards from the scope of copyright protection under the scenes a faire and merger of idea and expression doctrines. It also considers whether government mandates to use certain standards should affect the ability to claim copyright in those standards. Part III assesses whether SSOs need copyright incentives to develop and maintain industry standards they promulgate and whether arguments based on incentives should prevail over other considerations. It will also identify some competition and other public policy concerns about allowing private entities to own standards, particularly those whose use is required by law.
Link: Full Text

Title: "Standard Setting, Patents, and Access Lock-In: Rand Licensing and the Theory of the Firm"
Author: Joseph Scott Miller
Source: Indiana Law Review, Vol. 40, 2006 ; Lewis & Clark Law School Legal Studies Research Paper No. 2007-6
Publication Date: January
Date Added: June 11 2014
Free/Fee: Free
Abstract: Many leading voluntary standard-setting organizations (SSOs) have adopted intellectual property (IP) policies under which participants must promise to license any patents on technology that they contribute to a standard, and to do so on reasonable and nondiscriminatory terms (RAND). The standard setting literature includes a substantial focus on the widespread use of this RAND promise. A common refrain in these analyses of the RAND promise is that its meaning is dysfunctionally uncertain. We know more about the RAND promise, however, than the existing literature suggests. I show that we already know the RAND promise's core meaning, and why it remains attractive to SSOs. Specifically, I demonstrate that, although framed by reference to patent rights, the RAND promise's core function is to achieve a business organization goal that all SSOs confront - namely, removing the threat of post-adoption hold-up, thus inducing group production of a viable standards-based technology platform. One can solve the organizational problem by transferring a property right from threatener to threatenee(s). Corporate law scholars have shown that the corporate form enables group production of complex goods by giving contributors a way to lock in their capital to a separate property-holding entity, precluding both subsequent withdrawal and hold-ups from threatened withdrawal. In the IP domain, for example, patent pools usually form new companies to hold patent licensing rights centrally. Similarly, in the standards context, SSOs enable production of a standards-based technology platform by conditioning contributors' participation on making the RAND promise, i.e., on granting the whole of the adopter community a property-like access right to contributors' patented contributions to the standard. This access lock-in, whereby participants cast themselves into a common venture, makes possible post-standardization, mutually-beneficial bargaining over patent license terms by precluding both subsequent patent-based shutouts and holdups from threatened shutouts. In other words, every participating patent owner has, by making the RAND licensing promise, irrevocably waived its right to seek that most traditional of intellectual property law remedies, a court injunction against unauthorized access. The only relief a frustrated patent owner can seek against an adopter thereafter is the reasonable royalty expressly contemplated. Moreover, the RAND promise must run with the patent if the patent is sold to another party; only in this way does the RAND promise ensure that the standard can flourish without hold-up for as long as the market supports the technology.
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Title: "Competing on Standards? Entrepreneurship, Intellectual Property and the Platform Paradox"
Author: Timothy Simcoe
Stuart J. H. Graham
Maryann P. Feldman
Source: NBER Working Paper No. w13632
Publication Date: November 1 2007
Date Added: June 11 2014
Free/Fee: Free
Abstract: This paper studies the intellectual property strategy of firms that participate in the formal standards process. Specifically, we examine litigation rates in a sample of patents disclosed to thirteen voluntary Standard Setting Organizations (SSOs). We find that SSO patents have a relatively high litigation rate, and that SSO patents assigned to small firms are litigated more often than those of large publicly-traded firms. We also estimate a series of difference-in-differences models and find that small-firm litigation rates increase following a patent's disclosure to an SSO while those of large firms remain unchanged or decline. We interpret this result as evidence of a "platform paradox" -- while small entrepreneurial firms rely on open standards to lower the fixed cost of innovation, these firms are also more likely to pursue an aggressive IP strategy that may undermine the openness of a new standard.
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