Published: 3/12/16
Publication: Rebecca Tushnet’s 43(B)log
Jorge L. Contreras, “Private Ordering or Public Law? The Legal Character of Technical Standard Setting”: Private ordering structure arises when public enforcement mechanisms are unavailable (crime syndicates, rural settings) or less efficient/logical (credit rating, accounting standards). Standard setting: collaboration among competitors; technical focus, not legal; ideally the priority is on optimizing solutions—wi-fi, USB (my favorite USB joke). Most standard-setting bodies have formal policies about due process, and also about patents (disclosure requirement, FRAND licensing requirement—some bodies have one, some the other, some have both). Informal norms and practices also: tribal culture.
What did courts do when disclosure obligations were allegedly violated? Looked to informal norms of community. Rambus: written policy was quite vague and treated badly by Fed. Cir. (shockingly vague and imprecise) but still an affirmative obligation to disclose arising from practice; so too with Broadcom v. Qualcomm, where the written policy simply said parties are “encouraged” to disclose. FRAND: vague standard, but where challenged in litigation, looked at comparable licenses and patent pools to find reasonable range based on norms and practices in the industry. Private practice finds its way into private law disputes. That’s not unusual.