Giving Process Its Due When a Standard Development Organization Changes the Rules of the Game

Abstract

The process a Standards Developing Organization (SDO) employs to revise its patent policy is an aspect of the SDO’s competitive posture in the global marketplace. Research and publications about the substance of SDO patent policies are widely available. But a dearth of research exists on the processes SDOs employ to revise their patent policies. Generally, the processes an SDO uses to revise its patent policy are part of the governance processes of the SDO. As a baseline, the governance processes of an SDO must be consistent with the applicable legal system defining what is acceptable and unacceptable behavior. What an SDO says about its governance processes is a further consideration. Thus the procedures themselves, the procedures’ relationship to the applicable legal system and what the SDO says about the procedures all play a role in understanding how an SDO revises its patent policy. SDOs place varying priorities on the role of balance among the SDO’s constituencies and the dependence on consensus decision making in revising their patent policies. The processes of the American National Standards Institute (ANSI); the Institute of Electrical and Electronic Engineers Standards Association (IEEE-SA); the European Telecommunications Standards Institute (ETSI); the Internet Engineering Task Force (IETF); and the combined International Organization for Standardization, International Electrotechnical Commission and the International Telecommunications Union (ISO/IEC/ITU) illustrate this variety of approaches. The process an SDO uses initially to define its patent policy has different implications than the process an SDO employs to revise its patent policy. This is primarily due to the diverse interests that participants have in the legacy standards of the SDO that could be impacted by revisions of the patent policy. Two discriminators - the extent to which an SDO requires or encourages balance among the SDO’s constituencies and the relative importance of consensus decision making - are key to distinguishing among SDO processes for revising their patent policy. Any revision of an SDO’s patent policy has potential to benefit or harm participants and users of the standards. In choosing the priority to place on balance among constituencies in the revision process, SDOs make important decisions based on the diverse interests and numbers of constituents in its standards setting process … and the needs of constituent users of the SDO’s standards. The greater use of “consensus decision making” promotes greater general support for the outcomes of the revision process.