Disclosure Under SSO IPR Policies: A Theoretical Perspective

Disclosure Under SSO IPR Policies: A Theoretical Perspective

Of the various roles, a standard-setting organization (SSO) is likely to play in the development of standards, the most important involves striking a balance between the interests of innovators and implementers. Towards that end, most SSOs require their members holding patents to disclose and license all essential patents on terms that are fair, reasonable, and non-discriminatory (FRAND). These obligations are imposed to facilitate the development of standards, while at the same time reducing the risk of opportunistic conduct by standard essential patent (SEP) holders. However, seeking their enforcement has proved to be difficult for both, the SSOs and the implementers relying on the same. The academic literature is replete with theories that may help in understanding disclosure and further justifying the enforcement of disclosure obligations at SSOs. But despite the existence of these theories, most SSOs have been unsuccessful in seeking the enforcement of SEP holders’disclosure commitments. A part of the reason, it could be argued, is the approach to standard-setting, offered by the existing theories on disclosure. The present paper focuses on a qualitative assessment of some of these theories, with the object of understanding the obligations of disclosure in a better manner. In doing so, it carries out a comparative analysis of the strengths and weaknesses of each of these theories and discusses the possibility of an alternative theory for the enforcement of disclosure obligations at SSOs.