Innovative or Indefensible?: An Empirical Assessment of Patenting within Standard Setting

Cooperative standard setting may be burdened by "over patenting". Because standards may convey market power to firms whose patents are implicated, "strategic" patenting may enable opportunistic behaviors. Thus, particular concerns have been raised over patenting that takes place after the first versions of a standard are published, as these patents may be aimed at the acquisition of market power. This is a reasonable concern, but another possibility also may be likely: "ex post" patenting may be driven by genuine innovation. Which is more prevalent? To begin answering this question, the author empirically assesses the patenting that occurs within a standard setting organization. The author rejects the first stage hypothesis that all ex post patenting must be opportunistic and conclude instead that such patenting is likely a mixed bag of incremental innovative contributions along with some strategic ones. As a result, standard setting policy prescriptions should proceed with caution so that the good is not eliminated with the bad.