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The potential value of industry standard-setting bodies in a modern economy has been widely recognized. They permit uniform technical standards to be established outside of the crucible of Darwinistic consumer marketplace competition, which, in turn, can facilitate the rapid development and adoption of new technologies. Standard-setting bodies can achieve these results when they are designed to embrace open, inclusive, collegial and transparent decision-making. Indeed, when done properly, defining technology through the standard-setting process can create efficiencies that are ultimately beneficial to consumers.

INTELLECTUAL PROPERTY Counterfeits: Beyond the Knockoff FTC’s recent ruling in ‘Rambus.’ Cases decided since ‘Philips.’ Open-source software disputes. Emergence of Science Commons. Global patent-filing options. Keeping inventive-act records.

Yet, standard-setting bodies are not immune to anti-competitive pressures, as the Federal Trade Commission (FTC) noted in its Aug. 2 determination that Rambus Inc.’s standard-setting committee behavior violated antitrust laws. These bodies can serve as an attractive nuisance by presenting opportunities for participants to benefit from anti-competitive behavior that can be carried out as a result of their involvement in the process of defining and selecting the standard itself. The commercial incentives to misuse standard-setting bodies for competitive advantage should give pause to those who believe that they are an unalloyed good.

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