The International Dimension of Proprietary Technical Standards: Through the Lens of Trade, Competition Law and Developing Countries
July 6, 2012
Society of International Economic Law (SIEL), 3rd Biennial Global Conference Working Paper No. 2012/40
This paper has examined problems arising from proprietary technical standards at different levels of normative inquiry from the perspective of competition law and trade regulation with an emphasis on issues and concerns for developing countries. It aims to highlight the current legal and policy vacuum within the WTO framework in addressing problems of patents in standards from a competition policy dimension. The exclusivity preserved by patents is essential for development of new technologies, while standardization ensures homogeneity and introduces product compatibility. However, the interaction between the two species of legal entitlements (i.e. patents- exclusive v. standards-nonexclusive) is far from achieving coherence. Although Standard Setting Organisations (national/regional/international) have IPR polices to govern the interface, they have largely failed to resolve issues.
A survey of legal developments in comparative jurisdictions (US and EU) pertaining to the standards interface between patents and competition law reveals the possibility of diverging interpretations. This is on account of economic philosophy governing competition norms which requires higher deference to dynamic efficiencies generated by the IP system. Since standards practitioners are spread across the globe, the competitive harm generated by lax antitrust scrutiny has raised concerns among certain developing countries.
This paper has examined the WTO framework of TRIPS and TBT Agreements that largely governs the interface between proprietary standards and competition policy. By placing reliance on different analytical tools- viz., ‘principle-oriented’ approach and by internalizing competition rules (regulatory approach as provided by interconnection rules in GATS Annex to Telecommunications), the paper suggests higher deference for competition policy within the WTO to resolve the issue of proprietary technical standards.
Number of Pages in PDF File: 65
Keywords: Proprietary Standards, WTO, Competition Policy, FRAND, TBT, TRIPS, Patents, Domestic Regulation, Antirust, Technical Standards
JEL Classification: F02, F10, F20, F30, F40
Date posted: July 7, 2012
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