Assessing IPR Disclosure Within Standard Setting : An ICT Case Study

As part of its “policy project to examine the legal and policy issues surrounding the problem of potential patent ‘hold-up’ when patented technologies are included in collaborative standards”, the Federal Trade Commission held an all-day workshop on June 21, 2011. The first panel of the day focused on patent disclosure rules intended to encourage full knowledge of patents “essential” for a standard and therefore to prevent patent ambush. When patents are disclosed after a standard is defined, the patent holder may have enhanced bargaining power that it can exploit to charge excessive royalties (e.g., greater than the value the patented technology contributes to the product complying with the standard). In this paper, I present a case study on patent disclosure within the ICT sector. Specifically, I take an empirical look at the timing of patent disclosures within the European Telecommunications Standards Institute, the body responsible for some of the world’s most prevalent mobile telephony standards. I find that most members officially disclose their potentially relevant patents after the standard was published, and sometimes considerably so. On the other hand, I also find that the delay in declaring patents to ETSI standards has been shrinking over time, with disclosures occurring closer to (although for the most part still after) the standard publication date for more recent standard generations as compared to earlier ones. This latter finding coincides with ETSI policy changes, suggesting that standards bodies may be able improve patent disclosure with more precise rules