Standards Setting Organizations and Patents: Patent Policies Matter

In between the industry participants in the SSOs and the consumers, however, are the technology developers and owners. Many such developers and owners are armed with patent rights and thus have their own set of interests in the adoption of a particular technology standard, including receiving payment for licensing the patented technology covered by the standard. Even more interesting is the technology developer of an industry standard who also participates in the SSO. Recent developments in the decisions of the Court of Appeals for the Federal Circuit and the Federal Trade Commission (“FTC”) governing the relationship between patent owners and SSOs provide guidance to all parties involved in the SSO process. These decisions suggest that the standards-setting process should have clear rules regarding disclosure of patents or patent applications that may cover the standard. Failure of 1) the SSO to promulgate clear rules, 2) a SSO participant to follow the SSO rules, or 3) a SSO participant to properly understand the acts of other SSO participants during the standard development and adoption process, can result in highly undesired results, such as expensive litigation or a need to license technology covering a widely deployed standard. On the other hand, a clear understanding of the SSO rules and process should prevent standards-based surprises for all involved parties.