This paper, focusing on the interaction of standards and international law, was published in the Harvard Journal of Law & Technology, and can be found here. It starts from the observation that there is a “basic question [about] whether technical standard setting is best conceptualized as a private activity governed most efficiently by its own internal rules and procedures, or whether it is at root a public activity that should be regulated within the sphere of public law.”
The article proceeds as follows: after a general introduction to private ordering structures (i.e. rules systems that private actors conceive, observe, and often enforce through extra-legal means) in Part II, Parts III and IV describe how technical standard setting has evolved as a private sector activity. Part V analyses the incorporation of standards bodies’ rules and norms into private law adjudication. Part VI shifts the focus to the public benefits that standard setting affords, and Part VII describes the recent debate regarding public interest considerations relevant to the issuance of injunctions to block the sale of standardized products. Parts VIII and IX look more broadly at the public character of technical standard setting and ask whether public law mechanisms such as antitrust and competition law should regulate this activity.
The paper provides an interesting overview of how private standards are relevant: (i) extra-legally; (ii) as a mechanism of private law, and in particular as an instance of how courts rely upon privately developed norms and practices (another very good example of this is lex mercatoria, such as the Uniform Commercial Code or Incoterms), and (iii) for public law, such as competition law (professional rules are a good example of this, but so are interoperability standards). It also makes a good job of explaining how the private and public character of technical standards can clash in certain situations, such as when a standard is granted IP protection – a good example of this are disputes concerning the ability of a Standard Essential Patent holder who has made a FRAND licensing commitment to seek injunctive relief against an unlicensed manufacturer of a standardized product.
The author maps how what was once a matter of discerning privately ordered rules and practices in private litigation has progressively become a debate about the role of standards for competition policy, innovation incentives, and market-wide economic impact. He also describes succinctly the debate on whether antitrust should be used to supervise SEP matters. He eventually concludes that technical standard setting, though conducted largely through private organizations, possesses many attributes of a public function. Nonetheless, means other than antitrust should be given priority in addressing the public concerns that technical standards may pose – or, as he puts it, “while public law regimes such as antitrust and competition law may offer effective means for addressing the most egregious abuses of [patent-related] commitments, it may be preferable for public agencies to promote legal measures assuring the enforceability of these private commitments on their own terms”.
This is an interesting, and remarkably succinct, overview of an extremely complex area. By placing antitrust in a wider context, it provides some interesting insights into the issues that technical standardisation gives rise to, and into the role that antitrust is suitable to play in addressing those issues.