Troubling Aspects of the European Commission’s Standard-Essential Patents Roadmap

CPI Europe Column edited by Anna Tzanaki (Competition Policy International) & Juan Delgado (Global Economics Group) presents:

Troubling Aspects of the European Commission’s  Standard-Essential Patents Roadmap By Koren W. Wong-Ervin* (Global Antitrust Institute)

In April 2017, the European Commission (EC) issued a consultation on its Communication on Standard Essential Patents for a European Digitalised Economy (the Communication). As the Global Antitrust Institute at Scalia Law School at George Mason University noted in its comment to the EC, there are two main troubling aspects of the Communication:

1. The Communication appears to view variation in intellectual property rights (IPR) policies among standard-development organizations (SDOs) as a potential problem that may benefit from best practice recommendations.
2. The Communication refers to the need for “better regulation,” without providing evidence of an identifiable market imperfection, which is a necessary but not sufficient basis for economic regulation.

Embracing the Procompetitive Benefits of Variation Among SDO Policies

SDOs “vary widely in size, formality, organization and scope,” and therefore individual SDOs may need to adopt different approaches to meet the specific needs of their members. Although uniformity of SDO IPR policies may have some benefits, it also has potential costs, including the difficulties of keeping up with fast-moving technology without knowing how well particular best pra