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Sunday, 20 March 2011

Standards and patents in ICT: it's tough to be European

In an increasingly convergent market both for goods and services, the management and enforcement of intellectual property rights presents an increasing range of options and problems for their owners. This is because, while originally IP rights were conceived in terms of one-right-per product terms, they are increasingly commercially useless unless integrated into systems in which other IP rights, held by competitors or other third parties also operate. Nowhere is this better demonstrated than in the so-called "ICT" sector, where information and communications technologies dovetail, leaving consumers with a bewildering choice of phones, tablets, cameras and other devices that seem to possess a remarkable degree of functional overlap, and where issues such as interoperability and the agreement of generally acceptable technical standards must constantly be addressed.

The decision-making processes for IP rights owners are always carried out in the shadow of competition law, which watchfully -- and sometimes retrospectively -- pounces on the innovator which is too successful in establishing its own creations over and against the claims of others. Where copyright and trade marks are concerned, there is far more room for reflection before making a decision, since those rights are of long duration and relatively stable; they are not such powerful bars to competition or market entry since a copyright-protected work such as a computer program can be re-originated without the need to copy it, and trade marks -- even for product shapes and packaging -- cannot be invoked so as to invoke functional equivalents. But with patents the problems are exacerbated. The maximum life of a patent is much shorter; its validity is always open to challenge and its power to influence, control or distort the market is far greater. Make the right call and you can hit the jackpot; get it wrong and you can find yourself immersed in interminable patent litigation across a multitude of jurisdictions and pursued by competition investigations.

In light of this, the IPKat is taking a close and critical look at the programme of another forthcoming conference, Standards and Patents in ICT, which Butterworths Conferences are holding in Central London on Thursday 9 June.  He notes that, while once the emphasis would have been on the patent law side, it's now slipped firmly round to the competition side, with top billing given to the European Commission's policy on standards and advice on working the new EU Horizontal Guidelines. The international flavour of the speakers also reflects the depressingly international dimension to being able to bed a patent safely into a set of technical standards in the ICT field.  Curiously, while so much has been said about the real or imagined gap between US patent law and that of the EU as an explanation of the failure of European businesses to protect and exploit leading technologies as successfully as their US counterparts, rarely do we hear anyone discussing the gap between US and EU attitudes towards the regulation of competition as having anything to do with this problem.  Perhaps it's not more protection that's needed in Europe, or even more confidence in investment, but less regulation of competition -- particularly when it comes to cooperation between competitors in the creation of technical standards.

You can see the full programme here. Speakers' details here. Registration here.


Gentoo said...

"The international flavour of the speakers also reflects the depressingly international dimension to being able to bed a patent safely into a set of technical standards in the ICT field"

As I think Gordon Brown said about "Digital Britain", ICT is becoming as essential to modern life as oxygen and water. So long may it get more difficult to embed patents in ICT unless they are fully available to re-use and royalty free.

Anonymous said...

Since when were patents on water and oxygen technology not allowed? Should we encourage investors and creators only to invest in things we don't need.

I realise that this overlooks the interaction with standards issue but so does Gentoo's justification for his position.

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