Innovative or Indefensible? An Empirical Assessment of Patenting within Standard Setting

33 Pages Posted: 1 Oct 2008

See all articles by Anne Layne-Farrar

Anne Layne-Farrar

Charles River Associates; Northwestern University

Date Written: September 29, 2008


Much has been written - especially in recent years - regarding the perceived problem of "over patenting" within cooperative standard setting. Because standards are thought to frequently convey market power to those firms whose patented technologies are included in the standard, the concern is that "strategic" patenting, driven not by innovation but by rent seeking, will enable some firms to license their patents in an anticompetitive fashion. In particular, concerns have been raised over patenting that takes place after the first versions of a standard are published, as these patents may be opportunistic and aimed at the unwarranted acquisition or enhancement of market power. While this is a reasonable concern, another possibility may be likely as well: that at least some portion of ex post patenting is driven by genuine innovation. The question then becomes, which is more prevalent? To test the opportunistic patenting theory, I empirically assess the patenting that occurs within a standard setting organization. On the basis of this analysis, I reject the hypothesis that all patenting that takes place after a standard has been published must be opportunistic. Some may be, but an assessment of the available data suggests that much is not. This analysis is necessarily preliminary, but on the basis of the empirical assessments developed here, I conclude that ex post patenting is most likely a mixed bag of truly (albeit incremental) innovative contributions along with some highly skeptical ones. The bottom line, then, is that any policy prescriptions should proceed with much caution so that the good is not eliminated with the bad.

Keywords: Patents, standard setting organizations, opportunistic patenting

Suggested Citation

Layne-Farrar, Anne, Innovative or Indefensible? An Empirical Assessment of Patenting within Standard Setting (September 29, 2008). Available at SSRN: or

Anne Layne-Farrar (Contact Author)

Charles River Associates ( email )

1 South Wacker Drive
Suite 3400
Chicago, IL 60606
United States
312-377-9238 (Phone)


Northwestern University ( email )

2001 Sheridan Road
Evanston, IL 60208
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
PlumX Metrics