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1AIPPI Forum 2011
Hyderabad, India, 15 October 2011
1AIPPI Forum 2011
Hyderabad, India, 15 October 2011
Standardisation and Software Protection Strategies
2AIPPI Forum 2011
Hyderabad, India, 15 October 2011
Table of Contents
1. Overview
2. Standards involving patents
3. Impact on software protection strategy
3AIPPI Forum 2011
Hyderabad, India, 15 October 2011
Growing importance of standardisation• Importance of standardisation is growing
– more and more products have to work together
• Standardisation can cover various issues, such as – different grades or sizes of a particular product
– technical specifications to enable compatibility and interoperability
• Very often companies achieve interoperability among products by working together in standard-setting organisations. Though, standardisation can take different forms
– Formal standards
– Informal / ad-hoc standards
– De facto standards
4AIPPI Forum 2011
Hyderabad, India, 15 October 2011
If properly executed, standardisation generally viewed favourably• Standardisation can lead to economic efficiency and consumer benefits.,
e.g.– facilitating interoperability– network effects– increasing user and consumer choice
• But, standardisation comes also with cost, e.g.– risk of foreclosure– possible constraints in variety of products and innovation– potential market power of an essential IPR holder controlling a standard
• Elimination of alternatives by a group of competing firms is generally accepted by antitrust law because of substantial efficiencies relative to harm, provided conditions are met
– No obligation to comply
– Unrestricted participation for competitors
– Transparency for the wider circle of stakeholders
– Effective access to the standard (including IPR, see following slides)
5AIPPI Forum 2011
Hyderabad, India, 15 October 2011
Table of Contents
1. Overview
2. Standards involving patents
3. Impact on software protection strategy
6AIPPI Forum 2011
Hyderabad, India, 15 October 2011
Standards involving patents
• Restrictive effects on competition can arise if patents that are needed for the implementation of a standard are not available, because
– of a refusal to licence– access is only granted on unreasonably high royalty rates or exclusionary
terms and conditions
Patents are destined for private exclusive
use
Standards are intended for free,
collective use
Tension leading to conflicts whenever a
patent is needed for the implementation of a
standard
7AIPPI Forum 2011
Hyderabad, India, 15 October 2011
IPR policy is required to ensure benefits outweigh risk of harm• In the case of a standard involving patents, a clear and binding
IPR policy is required to ensure benefits outweigh risk of harm and to increase likelihood of effective access (avoid foreclosure)
• SSOs IPR Policy is a contractual self-regulation mechanism
– put in place by the members of the standard-setting organisation
– does neither supplement nor replace antitrust law, but has similar or identical legal effects than antitrust law requirements
• SSOs IPR Policy typically imposes constraints on members:
– Obligatory ex ante disclosure of essential patents
– Commitment to license on royalty-free or fair, reasonable, and non-discriminatory (FRAND) terms, if wishing to have IPR included in the standard
8AIPPI Forum 2011
Hyderabad, India, 15 October 2011
Table of Contents
1. Overview
2. Standards involving patents
3. Impact on software protection strategy
9AIPPI Forum 2011
Hyderabad, India, 15 October 2011
Impact on software protection strategy• When submitting technology for standardisation and technology
eventually gets chosen, you should be aware that– in exchange for the advantages that an enlarged standardised market
offers
– you take over obligations
• What does this mean concretely – disclose patents that will be needed for the implementation of a standard
– FRAND-licencing
10AIPPI Forum 2011
Hyderabad, India, 15 October 2011
10AIPPI Forum 2011
Hyderabad, India, 15 October 2011
Thank you for listening!
Michael Frö[email protected]+49 (0)211 971 996 30
