ABSTRACT
A standard developing organization (SDO), serving as a platform for joint development of standards and bringing together both technology contributors and users, inherently bears the tension of conflicting interests between the holders and users of SEPs. The rules on the process of developing standards and the IPR policy are the two most important governance regime of SDOs. The ICT sector has enjoyed unprecedented success thanks to the standardization of mobile technologies by 3GPP, with nearly 700 individual members, and the implementation of FRAND policy by ETSI, the most influential SDOs in ICT. The FRAND undertaking is meant to provide users access to the SEPs while ensuring that patent holders receive an adequate remuneration for their investment in research and development. ETSI’s commitment to find consensus, including for IPR Policy changes, among its very diversified members explains how it has achieved increasing international success since its formation more than 30 years ago. In contrast, the IEEE has chosen to deviate from this ‘FRAND harmony’ with its development and adoption of the new and dramatically different IEEE 2015 patent policy. In developing its new patent policy, the IEEE used a closed group and a secret drafting team, and the principles of due process, openness and consensus that generally apply to the development of IEEE standards were missing.
