Technical standards, standards-setting organizations, and intellectual property: a survey of the literature (with an emphasis on empirical approaches)

摘要

Important theoretical work relating to standards has been done in the areas of SSO dynamics, firm behavior, market effects of patents, and royalty pricing. This work has been supplemented by a significant body of research and empirical data on the acquisition and disclosure of patents within SSOs, particularly in the ICT sector. Several important catalogs and analyses of SSO patent policies now exist, together with rich databases of SSO membership and policy data. Despite this large body of literature, there are numerous areas at the confluence of intellectual property and standardization that warrant further investigation. These include: the influence and internal organization of consortia and other informal standards groups; the prevalence and market impact of de jure and de facto royalty-free standards; the effect of patents on standardization in growing fields outside of ICT including clean technology, medical devices and automotive infrastructure; the interaction of technology standards with open source software; the impact of product certification and certification marks on technology products and markets; and the institutional, legal and policy landscape of standardization outside of North America and Europe, particularly in China and other Asian economies. In addition, more public data is needed regarding patent licensing and royalty rates for standardized technologies. The data that currently exists is gleaned largely from public sources such as litigation records, government licenses and public securities filings. This data, however, represents only the tip of the iceberg. The largest and most meaningful accumulation of data concerning patent licensing is locked within the files of private firms, subject to strict confidentiality restrictions, and beyond the reach of researchers, policy makers, enforcement agencies and courts. Greater public access to this data has the potential to lower licensing transaction costs, reduce the number of disputes regarding FRAND royalty rates, improve the accuracy of judicial damages determinations, inform agency enforcement decisions, and improve policy making. As such, it is in the interest of all participants in the standardization ecosystem to contribute to the growing public data resources in this important area of economic activity.