Posted by Social Science Research Network
By Richard Taffet & William Cravens (Morgan, Lewis & Bockius LLP)
The Patent Policy of the American National Standards Institute (“ANSI”) historically has provided a broad framework that allows ANSI-accredited Standards Development Organizations (“SDOs”) to tailor and interpret their own patent policies to meet the specific needs of their members and the industries they serve.
Market evidence shows that this flexible approach has worked well, facilitating the development and commercial success of thousands of American National Standards by ANSI-accredited SDOs in a wide variety of industries. Recently, however, ANSI has struggled with an issue concerning the specific wording of license commitments submitted to and accepted by ANSI-accredited SDOs, and specifically whether the use of “customized” language in a license commitment (including language that limits a license commitment to “wholly compliant” implementations of a standard), is consistent with the ANSI Patent Policy.
Although ANSI has accepted license commitments using such language for more than two decades, it has recently suggested that it may restrict that flexible approach going forward. It would be unfortunate if ANSI were to ignore the potential adverse consequences for SDOs and patent owners that might arise if ANSI reverses its decades-long practice and no longer permits SDOs and patent holders the freedom to take a flexible approach to licensing commitments, particularly when there is no evidence of any benefits that would arise for the overall standards development process from a more restrictive approach that deviates from ANSI’s established practices.