In recent years, high-profile lawsuits involving standard-sessential patents (SEPs) have made headlines in the United States, Europe and Asia, leading to a heated public debate regarding the role and impact of patents covering key interoperability standards. Enforcement agencies around the world have investigated and prosecuted alleged violations of competition law and private licensing commitments in connection with SEPs. A review of case statistics shows that patent filing and assertion activity is substantially lower for Internet-related standards than for standards relating to telecommunications and other computing technologies. This paper analyzes historical and social factors that may have contributed to this divergence, focusing on the two principal Internet standards bodies: the Internet Engineering Task Force and the World Wide Web Consortium. It offers a counternarrative to the dominant account portraying standards and SEPs as necessarily fraught with litigation and thereby in need of radical systemic change. Instead, it shows how standards policies that de-emphasize patent monetization have led to lower levels of disputes and litigation. It concludes by placing recent discussions of patenting and standards within the broader context of openness in network technologies and urges both industry participants and policy makers to look to the success of Internet standardization in a patent-light environment when considering the adoption of future rules and policies.

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The Global Commission on Internet Governance was established in January 2014 to articulate and advance a strategic vision for the future of Internet governance. The two-year project conducts and supports independent research on Internet-related dimensions of global public policy, culminating in an official commission report that will articulate concrete policy recommendations for the future of Internet governance.
  • Jorge Contreras is a CIGI senior fellow. He is a leading scholar on intellectual property (IP) law, scientific research policy and technology standards development.