Open and closed strategy for standard setting and their relevance in developing nations .ppt by malj

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									 ITU Workshop on Standards and
   Intellectual Property Rights
           (IPR) Issues
   Open and closed strategy for
     standard setting and their
  relevance in developing nations

                       Utsab Banerjee,
                  Tata Consultancy Services

                                              International
                                              Telecommunication
New Delhi, India, 19-20 December 2011         Union
                                Contents

    Open and closed standards.
    Ex ante license as an alternative to FRAND
    (Fair, Reasonable and non discriminatory).
    Enforcement of Standards in India(case study
    for developing nations) .
    Conclusion and suggestions.




                                             International
                                             Telecommunication
New Delhi, India, 19-20 December 2011        Union         2
                        Open standards

   Transparent.
   Time taken for implementation is less.
   Defensive/royalty free patent pools.

“Disclose but not assert essential patent right.”
e.g. Ethernet (Digitel, Intel and Xerox).

Disadvantages:-
   Patent owners may not agree to participate in such
   standard.


                                                        International
                                                        Telecommunication
 New Delhi, India, 19-20 December 2011                  Union         3
      Closed/Controlled standards

    Licensor-licensee relationship.
    Control remains with the contributors.
    FRANDs are frequently used as preferred
    means

Disadvantages:-
  Hold up.
  Capture share of value created by standard.
  Royalty generating patent pool.
                                              International
                                              Telecommunication
New Delhi, India, 19-20 December 2011         Union         4
                                   FRAND

    The term “reasonable” is vague and there are
    no strict guidelines in most SSO IPR policy.
    IPR holders could ostensibly promise to adhere
    to FRAND when they are participating in
    standardization, and actually disregard such
    promise once the standards are widely
    implemented.
    Patent holders can dictate licensing terms
    resulting into monopoly which can also be anti
    competitive.
                                              International
                                              Telecommunication
New Delhi, India, 19-20 December 2011         Union         5
                       Ex-Ante FRAND

ex ante (i.e. pre-standards) licensing
                                        E
                                        X

                                        A
                                        N
                                        T
                                        E




                                            International
                                            Telecommunication
New Delhi, India, 19-20 December 2011       Union         6
                        Ex Ante FRAND

   Participants shall disclose patents and patent
   application information early in the standard
   development process.
   The substantive provision on the licensing
   terms to be mentioned.
   Fixed royalty based on patent valuation is a
   viable option.




                                              International
                                              Telecommunication
New Delhi, India, 19-20 December 2011         Union         7
 Enforcement of Standards in India
(case study for developing nations)
     India is a major player both in terms of ICT
     R&D, market and support.
     Few SSOs working in India esp. in ICT field.
     Major road block is enforcement of IPR and
     competition laws.
     Hardly any statutes or case law on standards
     and IPR.
     Competition commission of India (CCI) still in
     nascent stage.

                                                International
                                                Telecommunication
 New Delhi, India, 19-20 December               Union         8
 2011
        Suggestion and Conclusion
    Implementation of FRAND is problematic in India (due to
    enforcement issue), ex-ante FRAND seems a better option.
    More power needed in hand of CCI to settle competition
    law issues in standards.
    Safe Harbor provision in Competition Act for SSOs.
    Day to day hearing in High Court and Supreme Court of
    cases on IP Laws and standards (as directed in Bajaj v TVS
    case)
    Licensing terms based on the standard index of the
    licensee (members as well as a non participating entities).
    (Standard index should be calculated based on annual
    turnover, SME or other factors, of the licensee)

                                                      International
                                                      Telecommunication
New Delhi, India, 19-20 December 2011                 Union         9
           “There is great freedom in discipline”



                              Thank You




                                                    International
                                                    Telecommunication
New Delhi, India, 19-20 December 2011               Union

								
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