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The Strategic Use of Patents in Standardization in Relation to US, European and Chinese Competition Law

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The Strategic Use of Patents in Standardization in Relation to US, European and Chinese Competition Law The strategic use of patents in standardization in relation to US, European and Chinese competition law Citation for published version (APA): Heckman, M. J. C. (2016). The strategic use of patents in standardization in relation to US, European and Chinese competition law. Datawyse / Universitaire Pers Maastricht. https://doi.org/10.26481/dis.20160422mh Document status and date: Published: 01/01/2016 DOI: 10.26481/dis.20160422mh Document Version: Publisher's PDF, also known as Version of record Please check the document version of this publication: • A submitted manuscript is the version of the article upon submission and before peer-review. There can be important differences between the submitted version and the official published version of record. People interested in the research are advised to contact the author for the final version of the publication, or visit the DOI to the publisher's website. • The final author version and the galley proof are versions of the publication after peer review. • The final published version features the final layout of the paper including the volume, issue and page numbers. Link to publication General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal. If the publication is distributed under the terms of Article 25fa of the Dutch Copyright Act, indicated by the “Taverne” license above, please follow below link for the End User Agreement: www.umlib.nl/taverne-license Take down policy If you believe that this document breaches copyright please contact us at: [email protected] providing details and we will investigate your claim. Download date: 01 Oct. 2021 The strategic use of patents in standardization in relation to US, European and Chinese competition law Matt Heckman © Copyright M.J.C. Heckman, Maastricht 2016 Production & print Datawyse | Universitaire Pers Maastricht The strategic use of patents in standardization in relation to US, European and Chinese competition law DISSERTATION To obtain the degree of Doctor At Maastricht University On the authority of the Rector Magnificus, Prof. dr. L.L.G. Soete In accordance with the decision of the Board of Deans, To be defended in public On 22 April, 2016, at 10.00 hours by Mr. Mathieu Joseph Caspar Heckman Supervisors Prof. mr. Anselm Kamperman Sanders PhD (Lond.) Prof. Meir Pugatch (Lond.) Assessment Committee Prof. dr. Michael Faure (Chairman) Dr. Tsai-fang Chen (National Chiao Tung University, Hsinchu, Taiwan) Prof. dr. Gerard‐René de Groot Prof. dr. Nicolas Petit (University of Liege, Belgium) Prof. dr. Masabumi Suzuki (Nagoya University, Nagoya Japan) Prof. dr. David Townend 穷则变，变则通，通则久 Any circumstance hitting a limit will begin to change. Change will in turn lead to an un- impeded state, and then lead to continuity. 易经 (yi jing) Acknowledgements The PhD journey was a fascinating experience. A conference at the Academy of Europe- an Law (ERA) in Trier, Germany, raised my interest in the intersection of competition law and intellectual property rights. Prof. dr. Hanns Ullrich explained the finer details of the apparent tensions between patents and competition law. At the time, I decided to focus on the strategic use of patents in standardization in the telecommunications sec- tor. The choice of the telecommunications sector was motivated by the fact that, at the time, this sector was not very developed and promising for the future. A few years later, major competitors did engage in “patent-wars” in different jurisdictions all over the world. To give my research an international perspective, looking at the US, EU and Chinese competition law was a very obvious choice. In my earlier work, I was responsible for international relations at a Dutch Polytechnic college and, consequently, I had contacts with an interesting network of international universities and companies. First, I have to thank my supervisor Prof. Anselm Kamperman Sanders for his inter- esting comments on the various drafts of this PhD thesis. His expertise in the global developments in intellectual property law, involvement in Chinese academia, and lead- ership in the Institute of Globalization and International Regulation (IGIR) were “essen- tial” for my research. My co-supervisor Prof. Meir Pugatch often used his expertise and professional expe- rience to draw my attention to the functioning of modern technology markets. Again this perspective was crucial for the completion of this dissertation. I also thank the members of the Assessment Committee who kindly agreed to read and evaluate the dissertation: Prof. Michael Faure, Prof. Gerard-René de Groot, Prof. David Townend, Prof. Masabumi Suzuki, Prof. Tsai-fang Chen, and Prof. Nicolas Petit. I am also indebted to Zuyd Polytechnic, which, in particular represented by Kitty Kwakman, provided me with the time and facilities to carry out this research. I would also like to thank Jimme Keizer for providing me with motivating support during my years of research. During my research I had the good fortune to discuss the subject of this PhD with many practitioners in the field of standards, patents and competition law. Maurits Dolmans, Trevor Soames, Kai Jakobs, Rudi Bekkers, James Killick, John White, 7 David Barron, Luc Peeperkorn, Yanfeng Xiong, Pierre Regibeau, and many others, all provided insights at a time when their agendas were more than full. For the European perspective, I had the opportunity to participate in a closed meet- ing of the DVB-pool, during which licensing arrangements (including royalty rates) were discussed. Roberto Dini (Sisvel International) and Carter Eltzroth (DVB) both made this possible; thanks again. My eternal gratitude goes to the staff of the law libraries at the Chinese University of Hong Kong, Penn State University and especially the Max Planck Institute for Innova- tion and Competition in Munich. The Chinese researchers at Maastricht University: He Tianxiang, Wang Jie and Lu Tian helped me to gain a better understanding and translation of Chinese court deci- sions and we became good friends. At the MHMS, I would like to thank the dean and his management team for their support. I am very grateful for the support of Jos Maas, Neville Backler and Jill Penders, who all shared valuable time and knowledge with me. My deepest gratitude goes to the two women in my life. We got Lilly, our Stafford- shire Bull Terrier, from the Rescue Service at the beginning of my research. Although it first seemed that I rescued her, during my research, her attitude managed to rescue my PhD-dissertation several times. Finally, I have to thank my wife Diana for coping with me during the PhD journey. She had to bear my absent-mindedness and the fact that I became a bit cynical. She also contributed her fair share in the completion of this study and without her help and support this dissertation would not have been possible. Matt Heckman, February 2016 8 Content Acknowledgements 7 List of Abbreviations 17 CHAPTER 1 Introduction 21 1.1 Introduction 22 Overview of the chapters: 25 The first chapter – Introduction 25 The second chapter – Standards: definition, overview and relevance 25 The third chapter – Competition policy, patents and standard setting 26 The fourth chapter – Innovation policy and standardization: the perspective of China, an emerging economy 26 The fifth chapter – Patent Pools and competition law 27 The sixth chapter – Patent pools in the US 28 The seventh chapter – The EU approach towards patent pools 28 The eighth chapter – Patent pools inside the People’s Republic of China 29 The ninth chapter – Main findings and conclusions 30 1.2 Research Question 33 1.3 Methodology 34 Basic terms 38 Background 43 Valorization 45 1.4 Approach 46 CHAPTER 2 Standards: Definition, overview and relevance 51 2.1 Innovation and global standardization 53 2.2 Diffusion of innovation: standards and network externalities 55 2.3 Economic characteristics of network industries 57 2.4 Standards 58 2.4.1 Introduction 58 2.5 Definition of standards 59 2.6 Categories of standards 61 2.6.1 Open standards 62 2.6.2 Open standards and open source 65 2.7 EU and standards 66 2.7.1 Competitiveness of the EU ICT sector and standardization 72 2.8 The United States and standards 74 2.9 The EU-US cooperation in the Transatlantic Trade and Investment Partnership and standards 77 2.10 China and standards 79 2.10.1 Standardization and classification of Chinese standards 79 2.11 Chinese technology standards 82 2.11.1 Overview of different approaches by the Chinese government, comparing international and national standards 83 2.12 The European Union and Chinese standardization 86 2.12.1 Comparison of the different approaches of the EU, US and China to standardization 88 2.13 Conclusions 89 CHAPTER 3 Competition policy, patents and standard setting 91 3.1 Part A Competition policy and patents 93 3.2 Competition policy and Intellectual Property 96 3.3 Complexity of the legal aspects of standard setting 98 3.4 Standardization and competitive conduct 100 3.5 Economic analysis in relation
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