Antitrust and the Costs of Standard-Setting: A Commentary on Teece & (and) Sherry Symposium: The Interface between Intellectual Property Law and Antitrust Law: Commentary

The creation of an industry standard is a process that has much in common with the creation of a patented invention. Indeed, if standards are not patentable, it is only because of certain doctrinal peculiarities of patent law. It is therefore important to preserve the incentives for organizations to incur the costs of standard-setting activity, so that society may gain the benefits of the resulting standards. The law can preserve those incentives by treating the contributions of industry standards as distinct from those of inventions that are incorporated in them. More specifically, antitrust law should ensure that the patentees of inventions incorporated in industry standards do not extract royalties that go beyond the value of the inventions to include the value of standardization. 94. Se