Tension and synergism between standards and intellectual property

Reviewer: Max Hailperin

Smoot addresses those concerned about interactions between voluntary technical standards and intellectual property law. The focus is on patent law; copyright law receives lesser treatment, and trademarks and trade secrets are quickly dismissed. Although Smoot writes predominantly in the voice of an expositor rather than that of an advocate, he uses the legal and historical context in order to advance a particular point of view. Namely, he considers the traditional consensus regarding patent licensing to be a good balance of interests, and views with sk epticism such recent attempts to weaken patent holders' rights as the “most favored licensee” policy of the Internet Standards Process. This policy requires rights holders participating in the process to grant all Internet community members licenses with terms as favorable as any other license previously or later granted. This contrasts with the traditional position (endorsed by Smoot) of allowing terms to be independently negotiated with each licensee, provided that the rights holder agrees to negotiate “reasonable and nondiscriminatory” terms with all comers. Although Smoot makes his case well, he offers little insight into why the Internet community chose their alternative approach; readers should seek a more sympathetic presentation elsewhere for balance. Smoot does a good job of weaving together many strands: intellectual property law, business interests, the interests of the public, and the pragmatics of the standards development process. Anyone concerned with how we can continue to simultaneously foster both innovation and interoperability will want to read this paper.