Standardisation and
Software Protection
Strategies
AIPPI Forum 2011
Hyderabad, India, 15 October 2011
1
Table of Contents
1.
Overview
2.
Standards involving patents
3.
Impact on software protection strategy
AIPPI Forum 2011
Hyderabad, India, 15 October 2011
2
Growing importance of
standardisation
•
Importance of standardisation is growing
– more and more products have to work together
•
Standardisation can cover various issues, such as
– different grades or sizes of a particular product
– technical specifications to enable compatibility and interoperability
•
Very often companies achieve interoperability among products by working
together in standard-setting organisations. Though, standardisation can take
different forms
– Formal standards
– Informal / ad-hoc standards
– De facto standards
AIPPI Forum 2011
Hyderabad, India, 15 October 2011
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If properly executed, standardisation
generally viewed favourably
•
Standardisation can lead to economic efficiency and consumer benefits., e.g.
– facilitating interoperability
– network effects
– increasing user and consumer choice
•
But, standardisation comes also with cost, e.g.
– risk of foreclosure
– possible constraints in variety of products and innovation
– potential market power of an essential IPR holder controlling a standard
•
Elimination of alternatives by a group of competing firms is generally accepted
by antitrust law because of substantial efficiencies relative to harm, provided
conditions are met
– No obligation to comply
– Unrestricted participation for competitors
– Transparency for the wider circle of stakeholders
– Effective access to the standard (including IPR, see following slides)
AIPPI Forum 2011
Hyderabad, India, 15 October 2011
4
Table of Contents
1.
Overview
2.
Standards involving patents
3.
Impact on software protection strategy
AIPPI Forum 2011
Hyderabad, India, 15 October 2011
5
Standards involving patents
Patents are destined
for private exclusive
use
•
Tension leading to
conflicts whenever a
patent is needed for the
implementation of a
standard
Standards are
intended for free,
collective use
Restrictive effects on competition can arise if patents that are needed for the
implementation of a standard are not available, because
–
of a refusal to licence
–
access is only granted on unreasonably high royalty rates or exclusionary terms
and conditions
AIPPI Forum 2011
Hyderabad, India, 15 October 2011
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IPR policy is required to ensure
benefits outweigh risk of harm
•
In the case of a standard involving patents, a clear and binding IPR policy is
required to ensure benefits outweigh risk of harm and to increase likelihood
of effective access (avoid foreclosure)
•
SSOs IPR Policy is a contractual self-regulation mechanism
– put in place by the members of the standard-setting organisation
– does neither supplement nor replace antitrust law, but has similar or identical legal
effects than antitrust law requirements
•
SSOs IPR Policy typically imposes constraints on members:
– Obligatory ex ante disclosure of essential patents
– Commitment to license on royalty-free or fair, reasonable, and non-discriminatory
(FRAND) terms, if wishing to have IPR included in the standard
AIPPI Forum 2011
Hyderabad, India, 15 October 2011
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Table of Contents
1.
Overview
2.
Standards involving patents
3.
Impact on software protection strategy
AIPPI Forum 2011
Hyderabad, India, 15 October 2011
8
Impact on software protection
strategy
•
When submitting technology for standardisation and technology eventually
gets chosen, you should be aware that
– in exchange for the advantages that an enlarged standardised market offers
– you take over obligations
•
What does this mean concretely
– disclose patents that will be needed for the implementation of a standard
– FRAND-licencing
AIPPI Forum 2011
Hyderabad, India, 15 October 2011
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Thank you for listening!
Michael Fröhlich
[email protected]
+49 (0)211 971 996 30
AIPPI Forum 2011
Hyderabad, India, 15 October 2011
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