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A draft expert manual is provided. The draft manual deals with: definitions; standard-setting practices; patents; copyrights; layout circuits; trade secrets; IP remedies (including injunctions and damages); and competition law.
This chapter introduces the concept of standards-essential intellectual property (SEIP), including standards-essential patents (SEPs), standards-essential copyrights, and other applicable forms of IP. The chapter includes detailed consideration of SEPs – including a survey of scholarship of well-documented issues such as patent holdup, royalty stacking, component patenting and patent thickets – not neglecting also the availability of collective rights organizations, e.g. patent pools. Consideration is also given to applicable limiting doctrines in patent law such as defences for experimental use, as well as fundamental principles such as the requirement to publish. Detailed consideration is given to patent remedies, notably injunction and damages; compulsory licencing is also discussed. Likewise, copyright laws are considered carefully. Likewise, copyright laws are considered carefully. There is discussion of the particular situation of copyrights in relation to software and the structure of databases. There is also consideration of layout circuit and trade secret laws, as well as compulsory licensing.
This chapter applies the framework of exclusive property and liability rules originated by Calabresi and Melamed and developed by many others. Within this overarching framework, a detailed law and economics analysis is applied to the fundamental question of whether exclusive property or liability rules should govern interoperability standards and SEIP. The conclusion is reached that the general preference for exclusive property rules should be maintained. Key exceptions to this general presumption should be maintained, notably where two conditions are satisfied: (i) the existence of multiple IPRs reading on the same standard gives rise to a Cournot complements problem; and (ii) where the imposition of legal remedies (e.g. injunction) would have the effect of prohibiting significant non-infringing conduct, such as in circumstances where a patent may protect only one of many innovative features of a product. Consideration is also given to appropriate remedies for infringement of SEIP, and in particular to the correct principles for the calculation of damages in the form of reasonable royalty.
This chapter examines the relevant international law framework. Particular focus is given to the provisions of international intellectual property law, notably the TRIPS Agreement. The notion of minimum standards embedded in TRIPS is examined, with particular attention given to those aspects of the minimum standards impacting on the interoperability standard-setting landscape. The general lack of corresponding maximum standards is noted. Key flexibilities embedded in TRIPS are then discussed. The chapter then examines other provisions of international economic law with potential to address concerns associated with access to interoperability standards and SEIP: the WTO Agreement on Technical Barriers to Trade (TBT Agreement), the WTO Telecommunications Agreement (notably the GATS Telecommunications Annex and Reference Paper) and the WTO Informational Technology Agreement; international dimensions of competition law are also considered. The chapter concludes that there is no international agreement that is presently well-suited to address concerns associated with access to interoperability standards and SEIP.
Having developed a suitable normative approach, this chapter considers how best to achieve this, in light of current international law. A variety of legal modalities (treaty or soft law), fora (e.g. existing or standalone forum) and drafting approaches (multi-stakeholder or expert-led) are considered. An international expert-led soft law approach, outside the auspices of any existing international body, is recommended in the first instance, noting that, in due course, a more permanent forum may be warranted and that, indeed, binding treaty approaches may also be contemplated in the longer term. It is finally considered whether such an approach would remain consistent with existing international law, notably international intellectual property law. It is concluded that the proposed approach would be fully consistent with existing international law.
This chapter summarized the relevant concerns, the methodology applied and the salient conclusions, and recommends the development an international expert-led soft law instrument dealing with access to interoperability standards and SEIP.
The introduction explains the concerns existing in relation to access to interoperability standards and standards-essential intellectual property. The thesis is then explained and an expert-led international instrument is proposed to address the concerns identified. The topical methodology is introduced and explained. Rather than proceeding in rigidly Cartesian fashion, the work instead outlines relevant topoi or topics, such as protection under intellectual property and competition law, as well as comparison of leading jurisdictions and law and economic analysis. The parallels between the topical jurisprudence and methodologies pursued in the law of equity, notably within the common law tradition as well as in international law are noted. A brief summary of each chapter is provided.
This chapter details how competition laws have, to date, addressed matters associated with interoperability standards and SEIP. Particular focus is given the essential facilities doctrine. In the United States, the essential facilities doctrine has been abandoned; in the EU, refusal to licence can constitute an abuse of a dominant market position in the relatively narrow circumstances outlined in the ‘exceptional circumstances’ test applied in the Magill and IMS Health cases. Consideration is also given to the law and economics analysis of the relevant laws and practices. It is concluded that the essential facilities doctrine, as applied to interoperability standards and SEIP, would not provide a helpful basis for binding disciplines at the international level because of entrenched differences between leading jurisdictions, as well as its questionable standing in the context of law and economics scholarship. The work also includes discussion and analysis of other applicable principles of competition law in the context of interoperability standards, including concerted practices, fraud or misconduct in the creation of standards, tying, and the somewhat controversial doctrine of excessive pricing.
This chapter outlines the nature of standards, with a particular focus on interoperability or compatibility standards. Standards in concept are introduced. A typology of standards is provided, which distinguishes between ‘interoperability’ or ‘compatibility’ standards and other types of standards, as well as between formal and de facto standards. The concept of an interoperability or compatibility standard is then examined in more detail. The work then examines and discusses some noteworthy interoperability standards, both from within and outside the field of information and communications technology (ICT). The key fora for the creation of interoperability standards are surveyed. The highly variegated nature of the interoperability standards-setting landscape is emphasized, as well as the relative ease with which standard-setting initiatives can migrate from one forum to another. The economic characteristics of interoperability standards are examined, in particular demand-side economies of scale or ‘network effects’, both direct and indirect (the latter being of primary importance to the work).
A new international instrument is needed to address access to interoperability standards and standards-essential intellectual property, which are critical to maintaining technological advancement and promoting cost-effective solutions for consumers. Applying law and economics methodologies, Simon Brinsmead systematically explores how international and domestic law deals with these matters. This important book includes an examination of the technical and economic nature of interoperability standards; a detailed analysis of the issues arising under intellectual property and competition law; an analysis of whether liability or exclusive property rules should apply with respect to interoperability standards and SEIP; and consideration of feasible international approaches. Finally, Brinsmead includes a draft of his proposed international soft law instrument as a starting point for future discussions in the field. Of interest to lawyers, regulators and scholars, this work offers a meaningful contribution to international governance, harmonization of laws and technological advancement.