Competition

Competition, Intellectual Property and Standard Setting

 

Standard setting, the process of determining a common set of characteristics for a good or service, often promotes competition to the benefit of consumers. 

Standards are particularly important in the Information and Communication Technologies (ICT) sector because they allow products to interoperate and therefore make networks more valuable. However, ICT standards also raise challenges because they often rely on patented technologies. A tension arises because patents protect the owner’s exclusionary right to exploit an innovation, while standards are intended for widespread use. 

To review recent competition issues raised in this sector, the OECD gathered several experts in December 2014 for a hearing discussion which focused on recent cases and related issues.  Other issues under discussion included: Standard-essential patents; Injunctions and Commitments to licence on fair, reasonable, and non-discriminatory (FRAND) terms. Access full set of documents

See also Executive Summary with key findings and the Summary of the discussionPour plus d'informations, lisez la Synthèse et le Compte rendu détaillé de la discussion. 

» Access the full list of Competition Policy Roundtables    » Link to the  OECD Competition Home Page  

 Key findings from the discussion

Standards in the information and communication technology (ICT) sector are beneficial…

The existence of standards has encouraged innovation and fast and continuing penetration of ICT devices (like smartphones) delivering important benefits to business, government and consumers.

Many important ICT standards rely on technologies covered by standard-essential patents (SEPs)… This may raise potential for harm to competition stemming from patent holdup or royalty stacking. Standard Setting Organisations (SSOs) aim to mitigate these risks in their intellectual property rights (IPR) policies by requiring members to commit to licensing SEPs on “royalty-free” or “fair, reasonable and non-discriminatory” (FRAND) terms.

Commercial disputes can arise between SEP holders and standard implementers regarding the definition of FRAND terms... 

While there is currently no generally accepted methodology for determining FRAND royalties, certain principles and techniques have emerged.

The availability of patent infringement injunctions in respect of FRAND-encumbered SEPs may significantly affect licensing negotiations with implementers, leading to holdup…

There are different views regarding FRAND-related injunctions but, overall, there is a growing reluctance by courts to grant them, and growing opposition by competition authorities.

Co-operation between SSOs, patent offices and competition authorities can be useful…

SSOs can play a very important role in this debate and there is support for further work within SSOs to continue efforts to clarify their IPR policies on FRAND.

 

DECEMBER 2014 SESSION DOCUMENTATION

OECD PAPERS

OECD background paper

Note de référence de l'OCDE

Executive summary with key findings 

Synthèse

Detailed summary of the discussion 

Compte rendu detaillé

 

 

 

 

PAPERS FROM PARTICIPANTS 

EU

Finland

Germany 

Italy 

Japan 

Korea 

Russia 

US 

BIAC

 

EXPERT PAPERS AND PRESENTATIONS

Antoine DORE  
Senior Legal Officer, International Telecommunication Union
presenting Private Property in the Public Interest: The interplay of patents and standards • ppt

Giovanni NAPOLITANO Bio
Consultant, World Intellectual Property Organization
presenting Standard, Patents Rights and Competition

Maurits DOLMANS Bio
Partner, Cleary Glottlieb, London 
presenting IP, Standard Setting and Injunctions  ppt

Theon VAN DIJK  Bio
Chief Economist, European Patent Office
presenting Possible cooperation between patent offices, competition authorities and SSOs 

Anne LAYNE-FARRAR Bio
Vice-President, Antitrust & Competition Economics Practice, Charles River Associates US 
presenting Patent holdup and royalty stacking theory and evidence and  The complements problem within standard setting  ppt  

PRESENTATIONS

 

 

RELATED POLICY ROUNDTABLES  

Competition and Knowledge-based Capital, 2013

Supporting Investment in Knowledge Capital, Growth and Innovation,  2013

Standard Setting, 2010 (pdf)

Competition Patents and Innovation, 2009 (pdf)

Intellectual Property Rights, 2004 (pdf)  

 

» Access the full list of Competition Policy Roundtables

» Link to the  OECD Competition Home Page 

 

 

Related Documents