Standards Setting and Antitrust

Abstract

In recent years, several high-profile cases have raised questions about the appropriate relationship between antitrust policy and enforcement and the standards-setting process.This Article uses the tools of economic analysis to address several aspects of this debate.In Part I, we identify certain different types of standards, differentiate between standards and regulations, and offer a recent example of intellectual property issues arising in the standards-setting process.In Part II, we identify several ways in which intellectual property and antitrust regulations interact during the standards-setting process.Part III analyzes the interplay between antitrust and intellectual property, focusing on the various roles that firms play in standards-setting organizations (SSOs).In Part IV, we discuss SSO policies regarding intellectual property, including search, disclosure, and licensing rules.Finally, in Part V we argue that, to capture the social and economic benefits made available through standards, antitrust authorities must regulate sparingly, with no presumption that a "one size fits all" antitrust policy is appropriate.In our view, a better approach is for SSOs to establish clearly articulated rules or policies governing both members' obligations and the SSO's own actions.