Labelled as the building blocks of modern economy and credited with shaping the innovation landscape, standards have firmly cemented their position as the catalyst of technological progression. Industry standards, collaboratively set within standards-setting organizations (SSOs), enable interoperability and promote market competition. SSOs for their part, are entrusted with the responsibility of facilitating the licensing of patents essential to the implementation of standards, while striking a balance between the interests of innovators and implementers. While on the one hand, innovators expect adequate returns on investment in research and development (R&D) through licensing of their patents, implementers on the other, are looking to use the patented technology by seeking licenses at a reasonable rate.
The inclusion of a patent holder’s technology in a standard places the patent holder (innovator) in a relatively powerful bargaining position as opposed to the implementer. Therefore, in order to create a level playing field, patent holders are required by SSO IPR policies to disclose and license their patents to all prospective licensees on terms that are fair, reasonable and nondiscriminatory (FRAND). Coming off the back of such a requirement, it could well be argued that disclosure and licensing obligations form the backbone of the standards-setting process. However, most SSOs impose disclosure and licensing obligations in a fairly broad sense, without offering much guidance on the nature and extent of such obligations under their IPR policies. The lack of clarity has led to concerns regarding anti-competitive and exclusionary conduct by patent holders. Furthermore, with a constant rise in the number of FRAND disputes especially in the information and communications technology (ICT) sector, questions have been raised about the inadequacy of SSO IPR policies in defining the scope of FRAND licensing and disclosure obligations. Against this background, the present thesis is an attempt to fill a gap in academic literature regarding the possible role that SSO IPR policies can play in balancing the interests of innovators and implementers, vis-à-vis the development of standards.