You are right that standards going forward may be able to rewrite the conditions BUT they cannot set the license prices themselves that would be anti-competitive against the patent holders* . And it could render existing standards for video encoding, mobile telephony, wifi, bluetooth and many more unusable or at least with rising costs if two or three patent holders each try to squeeze as much as they can out each standard.
The anti-trust aspect comes in because the patent only becomes important because of it's inclusion by the standards body(/industry cartel).
The patent owner has the monopoly on the technology but they cannot form a cartel to push people to implement the technology they have a monopoly on (unless they make FRAND or similar commitments).
[* A former colleague of mine led the establishment of a group to create an industry standard outside of ETSI although the output was later submitted there to become one of their standards. The line he had to walk to get it legally set up correctly was tricky with massive fines on the member companies if the European Commission decided that he had got it wrong (anti-competitive behaviour can be fined upto 10% of group global turnover and Sony was doing a bit better then than now).]
>You are right that standards going forward may be able to rewrite the conditions BUT they cannot set the license prices themselves that would be anti-competitive against the patent holders*
I'm not going to pretend to know the antitrust laws in any given jurisdiction, but do you see what I mean by inscrutable? It's fine (and indeed mandatory) to require "fair and reasonable non-discriminatory" terms, but nailing down an upper bound on what that actually means as a number is anti-competitive? It doesn't make any sense because it can't. Patents and antitrust are diametrically opposed things that happen to overlap one another.
Yes it's a mess. But it does make some sense as standards bodies may have members without patents that want to minimise the price and others who want to get high prices.
I'm not a lawyer but I wonder if there is room to require patent holders to declare a cap on the price of each patent before it is included in the patent and the standards group could decide to accept or reject the patent at that point.
Comments
You are right that standards going forward may be able to rewrite the conditions BUT they cannot set the license prices themselves that would be anti-competitive against the patent holders* . And it could render existing standards for video encoding, mobile telephony, wifi, bluetooth and many more unusable or at least with rising costs if two or three patent holders each try to squeeze as much as they can out each standard.
The anti-trust aspect comes in because the patent only becomes important because of it's inclusion by the standards body(/industry cartel).
The patent owner has the monopoly on the technology but they cannot form a cartel to push people to implement the technology they have a monopoly on (unless they make FRAND or similar commitments).
[* A former colleague of mine led the establishment of a group to create an industry standard outside of ETSI although the output was later submitted there to become one of their standards. The line he had to walk to get it legally set up correctly was tricky with massive fines on the member companies if the European Commission decided that he had got it wrong (anti-competitive behaviour can be fined upto 10% of group global turnover and Sony was doing a bit better then than now).]
Edit: Got my * right without italics
>You are right that standards going forward may be able to rewrite the conditions BUT they cannot set the license prices themselves that would be anti-competitive against the patent holders*
I'm not going to pretend to know the antitrust laws in any given jurisdiction, but do you see what I mean by inscrutable? It's fine (and indeed mandatory) to require "fair and reasonable non-discriminatory" terms, but nailing down an upper bound on what that actually means as a number is anti-competitive? It doesn't make any sense because it can't. Patents and antitrust are diametrically opposed things that happen to overlap one another.
Yes it's a mess. But it does make some sense as standards bodies may have members without patents that want to minimise the price and others who want to get high prices.
I'm not a lawyer but I wonder if there is room to require patent holders to declare a cap on the price of each patent before it is included in the patent and the standards group could decide to accept or reject the patent at that point.