Essential Interoperability Standards

The present book, based upon a doctoral thesis submitted to the University of Bern, Switzerland, carefully and extensively addresses the legal challenges encountered in the field of standards-essential intellectual property (SEIP), and in particular of standards-essential patents (SEP). Dr Brinsmead analyses different school of thought and approaches in case law, in particular in the EU, the US and China. He carefully studies the background in international law and domestic law, in particular competition law. While the EU and China essentially rely upon competition law and in result on the essential facility doctrine containing the abuse of a dominant position, the US approach essentially relies upon restrictions inherent to intellectual property, in particular fair use and compulsory licensing. The book expounds the relevant case law in these jurisdictions and discusses pro and cons of different approaches, taking into account the literature on law and economics. It offers a wealth of information on the timely subject, from surveys of relevant international law to detailed accounts of the case law. It includes a pertinent history of the essential facility doctrine and thus of the relationship of intellectual property and competition law on both sides of the Atlantic. The author concludes by supporting an approach based upon inherent but limited restrictions of IP to liability and compensation, as opposed to property rights entitling full injunctions. He suggests developing an expert manual able to guide domestic courts within the framework of existing international law, in particular the TRIPs Agreement of the WTO. A very interesting draft proposal completes the work--