Antitrust, intellectual property and standard setting organizations

This is a partial version of a much longer work in progress. Because of the space limits imposed by the conference, the author has chosen to submit only the introduction and Parts I and II of the paper. The extended abstract spells out the agenda for the rest of the paper. Part II offers an empirical analysis of the intellectual property policies of standard-setting organizations in the telecommunications and computer networking industries. The presentation will discuss the full paper, and the author will make it available upon request directly to him. Four mains points are made: First, Standard-setting organization (SSO) rules governing intellectual property fundamentally change the way in which we must approach the study of intellectual property. It is not enough to consider IP (intellectual property) rights in a vacuum; we must consider them as they are actually used in practice. That means considering how SSO rules affect IP incentives. Second, there is a remarkable diversity among SSOs in how they treat IP rights. This diversity is largely accidental, and does not reflect conscious competition between different policies. Third, antitrust law is not well designed to take account ofthe modern role of SSOs. Antitrust rules may unduly restrict SSOs even when those organizations are serving procompetitive ends. Fourth, the enforcement of SSO IP rules presents a number ofimportant but unresolved problems of contract and intellectual property law. Some suggestions are offered for how to think about these problems in the final part of this paper (upon request directly from the author).