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USPTO Statement Supports and Endorses Consensus-Based Standards and the Private Sector-Led U.S. Standardization System

New York  April 14, 2009


A recent statement by the United States Government, delivered by the United States Patent and Trademark Office (USPTO), expressed strong support for the private-sector led and public-sector supported U.S. standards system and for the use of standards developed through an open and consensus-based process.

The statement, given at the March 25, 2009, meeting of the World Intellectual Property Organization (WIPO) Standing Committee on the Law of Patents (SCP), took a firm stand that “there is NOT a crisis, as claimed by some, in standard setting” in this country. Specifically, the presentation stated:

In [the U.S. government’s] view, the standard setting process should be voluntary and market-driven. Unnecessary government intervention can impair innovation, standards development, industry competitiveness, and consumer choice….The U.S. government recognizes its responsibility to the broader public interest by providing financial support for, and promoting the principles of, our standards setting system globally. U.S. industry competitiveness depends on standardization, particularly in sectors that are technology driven. The United States doesn’t encourage government intervention. The issues have long been discussed and are rejected because they hinder innovation, standards development, U.S. industries’ competitive advantage and attendant benefits to consumers. (Emphasis added.)

The presentation also outlined the benefits of open standards, and the USPTO stated the “United States supports and strongly encourages the use of open standards, as traditionally defined, that is, those developed through an open, collaborative process, whether or not intellectual property is involved.” (Emphasis added)

The term “open standard” has been used recently by some to describe a standard that may be copied, used, and distributed for no fee and/or whose embedded technology is irrevocably available on a royalty-free basis. This definition has created some confusion among standards developers and users generally because it is contrary to the process-based definition of “open” and “openness” long held by the American National Standards Institute (ANSI) and many other recognized standards bodies who understand the term to describe a collaborative, balanced, and consensus-based approval process for the promulgation of domestic or international standards. This traditional definition is in alignment with the policies of the International Organization for Standardization, the International Electrotechnical Commission, and Annex 4 of the Second Triennial Review of the World Trade Organization Technical Barriers to Trade Agreement.

In an effort to offer guidance to the standardization community regarding appropriate use of the term “open” when used to describe standards development processes, ANSI authored a critical issues paper in May 2005; the paper is available here.

According to the USPTO, standards developed through an open process improve interoperability, facilitate interactions ranging from information exchange to international trade, and foster market competition. They can also offer a balance of private and public interests that can protect intellectual property with fairness, disclosure policies, and reasonable and nondiscriminatory licensing. The statement reads:

In our view, the standard setting process should be voluntary and market-driven. Unnecessary government intervention can impair innovation, standards development, industry competitiveness, and consumer choice. While encouraging innovation, a properly structured public and private partnership can potentially balance the interests of patent holders which endeavor to exploit their patents, with those of producers which want to license and produce the goods covered by the standards at reasonable prices, and of the public which seeks the widest possible choice in the marketplace among interoperable products.

For more information, the full text of the USPTO statement is available here.


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