Is there an inherent tension between the FRAND, as implemented by many Standard Setting Organizations, and the imperatives of Open Source software development? In one word, no.
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In a speech last October, Neelie Kroes summed up the Commission’s stance (at the time) toward standard setting and, in doing so, highlighted a key area of policy debate: the role of government. In particular, she stated that:

“A more productive type of intervention [as compared to ex post antitrust/competition based on Article 82 or the Sherman Act] is, however, when the Commission follows the adage that ‘prevention is better than cure’. In other words
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Competition agencies on both sides of the Atlantic have been keen to pursue cases on IPR licensing in standard setting.  In the United States, it is the Federal Trade Commission leading the charge, with the Dell Corporation decision in 1996, the Union Oil Company of California (Unocal) consent order in 2005, the Negotiated Data (N-Data) settlement of 2008, and the long but ultimately unsuccessful Rambus case that came to a close just this year. In Europe, the European Commission also investigated Rambus, picking up the strands laid out by the FTC and reaching a tentative settlement in June of this year. The EC also opened a formal investigation of Qualcomm in 2007 (after two years of “informal” investigation). And at least one European member state has entered the fray, albeit at the court level rather than at the level of the national competition authority, with the IP-Com v. Nokia litigation in Germany.
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Several interesting themes can be expected in the European Commission’s forthcoming White Paper on ICT standardisation. This was evident after a speech by Anne Lehouk, Principal Administrator at the European Commission, at the Talk Standards event in Brussels today.
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Several interesting themes can be expected in the European Commission’s forthcoming White Paper on ICT standardisation. This was evident after a speech by Anne Lehouk, Principal Administrator at the European Commission, at the Talk Standards event in Brussels today.
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Ten case studies of SSOs for the purpose of better understanding synergies between different types – formal and informal – standard setting organizations and consortia.

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A little over a year ago, in January 2008, the Federal Trade Commission (“FTC”) announced a settlement with Negotiated Data Solutions (“N-Data”) regarding the firm’s patent licensing practices in relation to the Ethernet standard for computer networking. That announcement has prompted a number of responses, both positive and negative, not so much because of the specifics of the case but rather because of the broader questions it raised.
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