Intellectual property, standards and competition law: navigating a minefield

The value attached to intellectual property, particularly patents, has been rapidly increasing. The recognition, development and exploitation of intellectual property is now a central factor in technology management. However, in the field of electronics in particular, there is a natural tension between two objectives: on the one hand, protecting market share by carving out clear proprietary positions; and, on the other hand, growing the market through industry-wide acceptance for new technologies, particularly by having the technology accepted as standard. The general requirement imposed on companies that participate in formal standards-setting is that they must give an undertaking to the standards body to offer licences to essential intellectual property on terms that are fair, reasonable and nondiscriminatory. Any patentee that has been involved in standards-setting, and which later seeks to license or litigate related patent rights, inevitably faces arguments about this requirement. The position is further complicated by the international legal landscape. In the European Union, it is often argued by potential infringers that the patented technology is an "essential facility", access to which (it is argued) must be granted under EU competition law. Patentees, however, view this as a form of compulsory licensing. There is much that the technology manager can do to plan a successful route, guiding the development of technology projects through the complex interrelated network of law, business practice, and technology. It is important to plan technical developments so as to create a balanced portfolio of essential and nonessential rights, framed around appropriate products and methods, and to ensure that third party use of the rights can be effectively controlled and policed in a manner that benefits the technology and the business.