In November last year (2009), the Standards Administration of China (SAC) issued for public comment their “Proposed Regulations for the Administration of the Formulation and Revision of the Patent-Involving National Standards”. As previously outlined, the proposal drew considerable criticism due in large part to requirement that patents be made available either royalty free of for a nominal fee to be eligible for inclusion in Chinese national standards.

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In April, the Chinese Ministry of Science and Technology (MOST) made available for public comment a draft notice outlining a series of proposed changes to rules which relate to the country’s indigenous innovation policy. The proposal – “Notice on Indigenous Innovation Product Accreditation in 2010” (English translation) – drafted in conjunction with National Development and Reform Commission, and the Ministry of Finance will relax a number of requirements for foreign products seeking accreditation and listing upon the approved government procurement lists.

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A forum and debate on the topic “Intellectual Property, Open Source and Standards: Friends or Foes?” will be held at the Maastricht University Campus Brussels on June 1, 2010. Hosting the event are The Institute for Globalisation and International Regulation at the Maastricht University Faculty of Law together with the Stockholm Network Intellectual Property & Competition Programme.
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China recently circulated a draft regulation regarding the use of patents in Chinese national standards. The regulation demands that for patents to be eligible for incorporation in standards, they must be made irrevocably available royalty free
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One of the most significant challenges facing competition policy today is defining the appropriate role of antitrust law within the context of intellectual property right licensing by standard-setting organizations (“SSOs”).  Many commentators believe it is necessary to apply the full force of the antitrust laws, and sometimes special rules that would increase the scope of antitrust, to the standard-setting process in order to adequately oversee what they perceive as a unique opportunity for anticompetitive behavior.  Indeed, antitrust agencies both in the United States and around the world have expressed agreement with the notion that the standard setting process requires strong enforcement of antitrust liability rules in order to ensure efficient outcomes that benefit consumers.  However, this view largely fails to consider the costs of antitrust.  In particular, it fails to recognize the limits of antitrust when the marginal benefit of antitrust enforcement is slight and the potential for erroneous enforcement (“false positives”) and thus, the likelihood that procompetitive behavior will be deterred, is high.  The Supreme Court itself has emphasized repeatedly that the scope of the antitrust laws should be responsive to such a cost-benefit analysis.
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Mention “competition” and “standard setting” in the same sentence and you’re likely to get a wide assortment of reactions. I offer a few thoughts on several layers of competition and how they can affect emerging standards.
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