Safeguarding the Standard: Standards Organizations, Patent Hold-up, and other Forms of Capture

Abstract

Standards development requires cooperative effort by individuals and firms with divergent interests. Standards development organizations (SDOs) are subject to capture by a single firm or a group of firms. Historically, capture has been viewed through the prism of antitrust law. Patent hold-up can be conceptualized as another form of capture, and whether or not hold-up violates the antitrust laws, it can harm the SDO and impede the commercial adoption of its standards. SDOs have a number of remedies available to them, but an SDO must carefully consider their appropriateness and effectiveness.