Some Standards for Standardisation: A Basis for Harmonisation and Efficiency Maximisation of EU and US Antitrust Control of the Standard-Setting Process

摘要

While the setting of industrial standards provides for highly desirable efficiencies, especially when it comes to know-how pooling in areas of extensive research and development, it also bears the inherent danger of market distortions prohibited by competition law. Since the result of a standard setting process is largely influenced by the responsible standard-setting organisation (SDO) and its working processes, the rules in governing these processes need to be carefully examined with regard to possible abuses (e.g. "patent ambushes. ") While an analysis of recent high courts' rulings (e.g. the US Rambus and EUrnMicrosoft cases) show that, while the approaches divert, the goals of the relevant legal frameworks are identical, both aiming at the efficient protection of workable competition. Therefore, harmonisation of standard-setting processes regarding their conformity with the EU and US competition-law regimes seems both possible and highly desirable in order to increase legal certainty and maximise economic efficiencies.