Tools to Prevent Patent "Hold-up": IP Rights in Standard Setting

The Federal Trade Commission is engaged in a 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. As part of the project, the Commission will conduct a workshop and seeks views of consumers and the legal, academic, and business communities on the issues to be explored in this project.

Background of the Project

Collaborative standard setting plays an important role in the modern economy. In areas such as information and communications technology, for example, the usefulness of complex products and services often depends on the interoperability of components and products of different firms. To enhance the value of these complex products, private firms – including competing manufacturers, their customers and suppliers – frequently participate in standard-setting organizations to set technological standards for use in designing products or services.

When standards incorporate technologies that are protected by patent rights, there is a possibility for “hold-up” by a patent owner – a demand for higher royalties or other more costly or burdensome licensing terms after the standard is implemented than could have been obtained before the standard was chosen. Hold-up can subvert the competitive process of choosing among technologies and undermine the integrity of standard-setting activities. Consumers can be harmed if manufacturers are able to pass on higher costs resulting from hold-up.

The project will examine three ways to try to prevent hold-up: (1) patent disclosure rules of standard setting organizations; (2) commitments given by patent holders that they will license users of the standard on reasonable and non-discriminatory (“RAND”) terms; and (3) ex ante licensing negotiations by patent holders, before the standard is adopted. The Commission intends to examine these issues from practical, economic and legal perspectives, and under antitrust, contract, patent and consumer protection law .

PRE-REGISTRATION

The event is free and open to the public. All attendees will be required to display a current driver's license or other valid form of photo identification. The Conference Center is accessible to people with disabilities. If you need an accommodation related to a disability, please call Carrie McGlothin at 202-326-3388. Such requests should include a detailed description of the accommodations needed and a way to contact you if we need more information.

Pre-registration for this workshop is not necessary, but is encouraged, so that we may better plan for the event.

To pre-register, email your name and affiliation to standardsproject@ftc.gov.

NOTE: When you pre-register, we will collect your name, affiliation, and your email address. This information will be used to estimate how many people will attend. We may use your email address to contact you with information about the workshop.