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Patents and Standards A modern framework for IPR-based standardization FINAL REPORT A study prepared for the European Commission Directorate-General for Enterprise and Industry This study was carried out for the European Commission by and as part of the DISCLAIMER By the European Commission, Directorate-General for Enterprise and Industry The information and views set out in this publication are those of the author(s) and do not necessarily reflect the official opinion of the Commission. The Commission does not guarantee the accuracy of the data included in this study. Neither the Commission nor any person acting on the Commission’s behalf may be held responsible for the use which may be made of the information contained therein. ISBN 978-92-79-35991-0 DOI: 10.2769/90861 © European Union, 2014. All rights reserved. Certain parts are licensed under conditions to the EU. Reproduction is authorized provided the source is acknowledged. About ECSIP The European Competitiveness and Sustainable Industrial Policy Consortium, ECSIP Consortium for short, is the name chosen by the team of partners, subcontractors and individual experts that have agreed to work as one team for the purpose of the Framework Contract on ‘Industrial Competitiveness and Market Performance’. The Consortium is composed of Ecorys Netherlands (lead partner), Cambridge Econometrics, CASE, CSIL, Danish Technological Institute, Decision, Eindhoven University of Technology (ECIS), Euromonitor, Fratini Vergano, Frost & Sullivan, IDEA Consult, IFO Institute, MCI and wiiw, together with a group of 28 highly-skilled and specialised individuals. ECSIP Consortium p/a ECORYS Nederland BV Watermanweg 44 3067 GG Rotterdam P.O. Box 4175 3006 AD Rotterdam The Netherlands T. +31 (0)10 453 88 00 F. +31 (0)10 453 87 55 Email [email protected] 2 Patents and standards: A modern framework for IPR-based standardization Table of contents Preface 7 Executive Summary 9 1 Introduction 15 1.1 Context and objective of the Study 15 1.2 Theoretical frameworks applied in the Study 16 1.3 Benefits of smoother SEP licencing 18 1.4 Research methodology and value added of the study 20 1.5 Outline of the research 22 2 Innovation, IPR and standardization 25 2.1 The economics of information and innovation 25 2.1.1 Efficient market outcomes and market failures 25 2.1.2 Innovation and intellectual property rights 27 2.1.3 Innovation and collaboration 28 2.2 Standardisation: institutions and rules 31 2.2.1 Institutional context of standard setting organisations 31 2.2.2 The relation between the EU and SSOs 33 2.2.3 The relation between SSOs and patent holders 36 2.2.4 The relation between the EU and patent holders 48 2.2.5 Patent offices 49 2.3 Licensing: motives and practices 50 2.3.1 Licensing in the perspective of patenting motives and strategies 51 2.3.2 Licensing practices 52 2.3.3 Licensing in the case of Standard Essential Patents 53 2.3.4 Patent pools 54 3 Standardization and licensing in standard dependent industries 57 3.1 (Mobile) telecommunications 57 3.1.1 Industry definition and focus 58 3.1.2 Industry structure and developments 59 3.1.3 Market dynamics: firm entry and exit 62 3.1.4 The strategic role of standards and patents 64 3.1.5 Stylized industry characteristics 68 3.2 Consumer Electronics 69 3.2.1 Industry definition and focus 70 3.2.2 Industry structure and development 70 3.2.3 Market dynamics: large number of licensees and licensors 74 3.2.4 The strategic role of standards and patents 76 3.2.5 Stylized industry characteristics 79 3.3 Automotive 80 3.3.1 Industry definition and focus 80 3.3.2 Industry structure and developments 80 3.3.3 Market dynamics: entry and exit 83 3.3.4 The strategic role of standards and patents 85 Patents in standards: A modern framework for IPR-based standardization 3 3.3.5 Stylised industry characteristics 90 3.4 Smart Grids 92 3.4.1 Industry definition and focus 93 3.4.2 Industry structure and developments 93 3.4.3 Market dynamics: led by the large integrated suppliers 100 3.4.4 The strategic role of standards and patents 101 3.4.5 Stylized industry characteristics 104 3.5 Cross industry conclusions: trends impacting standardization and licensing 107 4 Barriers for efficient licensing of standard related patents 109 4.1 The main problems to be solved 110 4.1.1 Growing number of standard essential patents 110 4.1.2 Transaction costs and market failures 111 4.1.3 Time-to-market 113 4.2 Lack of transparency regarding SEPs 114 4.2.1 Uncertain definition of essentiality 114 4.2.2 Uncertainty about SEP ownership 117 4.2.3 Why is the lack of information a problem? 121 4.3 Problems related to specific business behaviour towards SEPs 122 4.3.1 What is the problem? 123 4.3.2 Problems leading to an increased risk of litigation 124 4.4 Conclusion 130 5 Improving the framework for IPR-based standardization 133 5.1 Overview of suggested solutions 135 5.2 Increasing the level of transparency 141 5.2.1 Defining update requirements & disclosure scope for SEP disclosures 141 5.2.2 Requiring precise information to substantiate essentiality 144 5.2.3 Routinely checks of essentiality 146 5.2.4 Entering licensing information in SSO database 151 5.2.5 Limiting the use of blanket disclosures 154 5.2.6 Adopt a stricter disclosure regime 160 5.2.7 Notification of transfer of SEP ownership by recordation 163 5.2.8 Increased collaboration between SSOs and patent offices 165 5.3 Promoting patent pools 169 5.4 Introducing dispute resolution mechanisms 177 5.5 Principles on FRAND definition/royalty principles 184 5.6 Transfer issues 189 5.7 Technology inclusion in the standardisation process 194 6 Other potential policy routes stemming from non-standard dependent industries 203 6.1 A brief introduction to a selection of non-standard dependent industries 203 6.1.1 Chemicals 203 6.1.2 Diagnostics 205 6.1.3 Mechanical engineering 208 6.1.4 Nanotechnologies 210 6.2 IP related problems in non-standard dependent industries 213 6.2.1 Large number of patents 213 6.2.2 Validity and scope 214 6.2.3 Royalty stacking 214 6.3 IP Solutions in non-standard dependent industries 214 Patents and standards: A modern framework for IPR-based standardization 4 6.3.1 Creating transparency via web crawling, wikis and crowdsourcing 215 6.3.2 Collaborative licensing programs 219 6.3.3 Clearinghouse 224 6.3.4 Applicability to standard dependent industries 227 Annex I Interview plans 229 Annex II Questionnaire on policy options 243 Annex III Data analysis: methodology and data used 253 Annex IV Determinants of blanket disclosures 267 Literature used 271 Patents in standards: A modern framework for IPR-based standardization 5 Preface This study was commissioned by the European Commission within the context of the Framework Contract for Industrial Competitiveness and Market Performance – ENTR/90/PP/2011/FC. The study was granted to the ECSIP consortium and its subcontractors and individual experts. Responsible for the management of the project and overall analysis are Professor Marcel Canoy, Nicolai van Gorp, Laura Birkman, and Patrick de Bas (Ecorys). The core-team further consists of Rudi Bekkers (Eindhoven University of Technology), Wolter Lemstra (TUDelft), Yann Ménière (MINES ParisTech), Rolf Zeldenrust, Bart Voogt, and Isabel Sainz (Ecorys Netherlands). Furthermore, the team responsible for the data analysis consisted, next to Rudi Bekkers and Yann Ménière, of Önder Nomaler (Eindhoven University of Technology), Justus Baron and Tim Pohlman (both associated with Mines ParisTech), and Arianna Martinelli (Scuola Superiore Sant'Anna, Pisa). Quality control was provided by Professor Jan Smits (Eindhoven University of Technology) and Arnold Verbeek (Idea consult). We would like to thank the steering group from the European Commission for its constructive comments and excellent guidance and advice throughout the entire period of this study. We also thank all participants to the interviews and survey for their contributions. Special thanks go to Esther van Zimmeren (University of Antwerp) for providing insights in the measures used in other non-standard dependent industries. The opinions expressed in this Study are those of the authors and do not necessarily reflect the views of the European Commission. Patents in standards: A modern framework for IPR-based standardization 7 Executive Summary Introductory remarks Context of the study Efficient licensing of intellectual property rights (IPR) is crucial for achieving broad and rapid diffusion of innovation. To ensure that Europe is well positioned in today’s global competitive environment, unnecessary barriers in the market for IPR licensing need thus to be removed. This requires a successful balancing of the incentives to invest in innovation against the benefits for the economy at large of a wide diffusion of knowledge. Of special interest in this context is the licensing of patents on technologies that are included in standards as an efficient licensing of these patents is key to the success of the standard. The licensing of such standard essential patents (SEPs) is however prone to market failures such as externalities (positive and negative), information problems, market power and free-riding. The various forms of market failure can result in barriers obstructing the efficient licensing of SEPs and can thus hinder the realization of the economic and societal benefits of the affected standards. Topic and objective of the study The principle objective of this study is to collect quantitative and qualitative data on IPR-based standardization, with a focus on identifying barriers for efficient licensing of SEPs and on possible solutions to these barriers.
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