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Technology standards development, patent ambush, and US antitrust policy

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  • Hemphill, Thomas A.

Abstract

Patent ambush, an unresolved issue for many US standards development organizations (SDOs), is utilized with increasing frequency by opportunistic firms, and thus poses a real challenge for the US de jure standards development process. Regardless of preemptive patent ambush policies that have been formally enacted by SDOs, there continues to be the occasional firm that opts to implement a patent ambush strategy. Still, by creating legal and organizational barriers, SDOs can create a less-hospitable environment for such a strategy. For example, a Federal Trade Commission/Department of Justice Enforcement Policy Statement addressing patent ambush will provide the standards development community with added clarification of potential antitrust violations and the resulting possibility of enforcement actions. Furthermore, vigorous defenses by ‘patent infringers’ will establish increased legal clarity on this issue and provide an SDO policy framework to effectively eliminate the use of the patent ambush strategies by future standards-setting participants.

Suggested Citation

  • Hemphill, Thomas A., 2005. "Technology standards development, patent ambush, and US antitrust policy," Technology in Society, Elsevier, vol. 27(1), pages 55-67.
    • Handle: RePEc:eee:teinso:v:27:y:2005:i:1:p:55-67
    DOI: 10.1016/j.techsoc.2004.10.006
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    References listed on IDEAS

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    1. Carl Shapiro, 2001. "Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard Setting," NBER Chapters, in: Innovation Policy and the Economy, Volume 1, pages 119-150, National Bureau of Economic Research, Inc.
    2. Tassey, Gregory, 2000. "Standardization in technology-based markets," Research Policy, Elsevier, vol. 29(4-5), pages 587-602, April.
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    Cited by:

    1. Slowak, André P., 2009. "Market fields structure & dynamics in industrial automation," FZID Discussion Papers 02-2009, University of Hohenheim, Center for Research on Innovation and Services (FZID).
    2. Justus Baron & Jorge Contreras & Martin Husovec & Pierre Larouche, 2019. "Making the Rules: The Governance of Standard Development Organizations and their Policies on Intellectual Property Rights," JRC Research Reports JRC115004, Joint Research Centre.
    3. Cavalheiro, Gabriel Marcuzzo do Canto & Joia, Luiz Antonio & Van Veenstra, Anne Fleur, 2016. "Examining the trajectory of a standard for patent classification: An institutional account of a technical cooperation between EPO and USPTO," Technology in Society, Elsevier, vol. 46(C), pages 10-17.
    4. Kwon, Seokbeom, 2021. "The prevalence of weak patents in the United States: A new method to identify weak patents and the implications for patent policy," Technology in Society, Elsevier, vol. 64(C).

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