International Technical Standards and Essential Patents : From International Harmonization to Competition of Technologies

The use of international technical standards and conformity assessment systems are conventionally deemed as facilitating international trade and improving efficiency of production worldwide. However, many national, regional as well as international technical standards often incorporate proprietary technologies which then become essential for their implementation. To dismantle non-tariff barriers to the international trade, the Agreement on Technical Barriers to Trade (TBT Agreement) requires the WTO members to use international standards as a basis for their national technical regulations and standards. The duty also applies to the international standards which incorporate proprietary technologies. As international standards for high technologies heavily rely on proprietary technologies controlled mainly by companies established in developed countries, the duty under the TBT Agreement regularly brings clashes between developed countries and newly industrialized countries. Although it is generally recognized that it is important to protect the results of research and development (R&D) by the intellectual property rights, many newly industrialized countries deem the duty to use such international standards under the WTO regime as unfair. The perception of unfairness is even magnified, when their companies have to pay considerable amounts of royalties to the foreign holders of essential patents under international standards. This Article scrutinizes experiences with the national and international technical standards for several generations of mobile telephony in Europe, Far East Asia and the United States with the focus on the recent internationalization of standard-setting process in this field, geographical distribution of essential patents under individual standards, and the development of intellectual property rights policies applicable to standard-setting processes for mobile telephony on the national, regional and international levels. The Article points out that the outcome of international standardization should not be an adoption of any single international standard. Conversely, the TBT Agreement should create an environment where several technical solutions can compete on the global market. The competition between several technologies is one of precondition for guaranteeing the further technological progress in a sustainable way. Presented at the SIEL 2010 Conference in Barcelona