Patents and Standards in the ICT Sector: Are Submarine Patents a Substantive Problem or a Red Herring?

Multiple cases have been reported in which patents have posed dilemmas in the context of cooperative standard setting. Problems have come to the fore with regard to GSM, WCDMA, and CDMA standards, for example. Furthermore, JPEG and HTML standards, as well as VL-bus and SDRAM technologies, have faced patent-related difficulties. Nevertheless, it could be argued that complications have arisen in only a small fraction of standardization efforts, and that patents do not therefore constitute a real quandary. This article assesses the extent and the causes of the patent dilemma in the ICT sector through a brief analysis of how ICT companies’ patent strategies and technology-licensing practices relate to standard setting and by exemplifying and quantifying the problem on the basis of relevant articles, academic research papers, court cases and on-line discussions. Particular attention is paid to so-called submarine patents, which bear most significance with respect to the prevailing policy concern regarding the efficacy of the patent system.