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Competition Issues in Standard Competition Issues in Standard Setting: Setting:
The New Horizontal Guidelines The New Horizontal Guidelines
Simonetta Vezzoso, Simonetta Vezzoso, Trento UniversityTrento University
Trento UniversityMarch 16, 2011
Standards everywhere, but mostly unnoticed
•Standards: de jure, de facto, open, proprietary…
•Anticipatory, Enabling and Responsive Standardization •Standard Setting Organizations - International Telecommunications Union (ITU) 1865 - International Organization for Standardization (ISO) 1947- Institute for Electrical and Electronics Engineers (IEEE) - Worldwide Web Consortium (W3C)- Internet Engineering Task Force (IETF)- etc.
•Safety, Health, Compatibily (etc) Standards
Some Basics
Economic significance of standards
• Economies of scale (reduction of variety)
• Reduction of information asymmetry (less adverse selection)
• Reduction of transaction (e.g. search costs) and communication costs
• Network externalities
• Lock-in avoidance
• Part of the institutional infrastructure relevant to incremental innovation
• Etc.
Hindrances to effective standard adoption
• Users’ reluctance to move to new standard (also because of switching costs)
• Inappropriate timing of standardization (too early or too late relative to the stage of technology maturity)
• Opportunism of market participants
“People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices. It is impossible indeed to prevent such meetings, by any law which either could be executed, or would be consistent with liberty or justice. But though the law cannot hinder people of the same trade from sometimes assembling together, it ought to do nothing to facilitate such assemblies; much less to render them necessary.”
Adam Smith, The Wealth of Nations (1776)
Classification Societies
•Register Society (1760)
• IACS - International Associationof Classification Societies (1968)
- more than 90% the world's cargo carrying tonnage
COMMISSION DECISION of 14/10/2009relating to a proceeding under Article 101 TFEU (ex art. 81 ECT) Case 39416 - SHIP CLASSIFICATION
Competition Assessment: Relevant Markets
• product or service market or markets to which the standard relates
• relevant technology market (inter-technology competition)
• Market for standard-setting
T1 T5T4T3T2
S
SSO P
SSO P
SSO P
SSO P
PLICENCE
M MMM
Standards: Art. 101 Issues
• promotion of horizontal price fixing
• exclusion of competitors
• allocation of markets and territories
Anticompetitive
SSO policies should prevent collusivebehaviour among SSO members
Standards: Art. 102 Issues
SSO’s context
Patent Ambush
Patent hold-up: breach of FRAND obligations
• Patent infringement cases
e.g. German Supreme Court, Standard-Spundfass, 2004
ART. 101TFEU
ART.102 TFEU
ART.102 TFEU
COMMUNICATIO
N FROM THE COMMISSION
Guidelines on the applicability of
Article 101 of the Treaty on the
Functioning of the European
Union to horizontal co-
operation agreements
(O.J. 14.1.2011)
Key Points
• Prevention of collusive behaviour andof art. 102 abuses
• «safe harbour»
FRAND commitment
ex-ante IPR disclosure («good faith»; «reasonable endevours»
• pro-competitiveness of ex-ante disclosure maximum royalty rates
Conclusion
• Standards and Art.101 issues: guidance really helpful?
• Effective prevention of IPR ambush and/or hold-up?
• Effective guidance on difficult economic and legal issues?
Need for a new, «holistic» approach to standardization
SSO rendered increasingly «necessary» in high-tech industries also by an inadequate IPR policy