Patent ambushes occur where a participant in a standard-setting
body hides the fact that it owns intellectual property rights that
are essential for the implementation of a particular standard. Once
the standard has been developed and agreed, the participant
declares and identifies its rights, obtaining control over the
standard.
The practice can result in a potentially unjustified barrier to
entry. Even if the essential intellectual property right claim is
in itself valid, the company’s actions mean that the possibility of
considering alternative technologies has been artificially removed,
and that the competitive process has been distorted.
The Commission began investigating ETSI’s rules after concerns
were raised that the rules did not sufficiently protect against the
risk of patent ambush during ETSI standard-setting procedures.
However, at its General Assembly of 22nd November, ETSI
unanimously approved changes put forward by the Commission, which
tighten early disclosure requirements.
“Standards are of increasing importance, particularly in hi-tech
sectors of the economy,” said Competition Commissioner Neelie
Kroes, welcoming the changes.
“It is crucial that standard-setting bodies establish rules
which ensure fair, transparent procedures and early disclosure of
relevant intellectual property. We will continue to monitor the
operation of standard-setting bodies in this regard,” she
added.
