Patents and Standards in the ICT Sector: Are Submarine Patents a Substantive Problem or a Red Herring?

This article examines the role of law reform in promoting the development of technical standards for the authentication of parties engaged in Internet commerce. Law reforms intended to improve the security of Internet commerce can only succeed if they address business, technical and legal issues simultaneously. The EU has used commercial law reform and formal standard development to coordinate work on authentication standards, while the U.S. has allowed the market to determine what type of authentication technology is appropriate and has left the development of standards to private consortia. While the EU approach may solve collective action problems more effectively, the U.S. approach may discover end user requirements and may allow business judgments about risk to inform the law more effectively. Neither approach has yet resolved the authentication problems facing businesses engaged in online commerce.