Antitrust, intellectual property and standard setting organizations

Standard-setting organizations (SSOs) regularly encounter situations in which one or more companies claim to own proprietary rights that cover a proposed industry standard. The industry cannot adopt the standard without the permission of the intellectual property owner (or owners). Given the importance of SSO rules governing intellectual property rights, there has been surprisingly little treatment of SSOs or their intellectual property rules in the legal literature. My aim is to fill that void. SSO rules governing intellectual property fundamentally change the way in which we must approach the study of intellectual property. It is not enough to consider IP rights in a vacuum; we must consider them as they are actually used in practice. And that means considering how SSO rules affect IP incentives. Second, there is a remarkable diversity among SSOs in how they treat IP rights. This diversity is largely accidental, and does not reflect conscious competition between different policies. Third, antitrust law is not well designed to take account of the modern role of SSOs. Antitrust rules may unduly restrict SSOs even when those organizations are serving procompetitive ends. Fourth, the enforcement of SSO IP rules presents a number of important but unresolved problems of contract and intellectual property law.