Standard Essential Patent in Telecommunication Standard: United States and China Comparison
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This dissertation takes national standard essential patent (“SEP”) policy for telecommunication markets as a case study of global regulatory competition. Nations or regions use technical standard-setting processes as a regulatory tool to promote or protect their local industries. A SEP is one that reads on a specific industry standard so that it is not possible to implement the technical standard without infringing or licensing the patent. Regulatory competition in information and communication technology (“ICT”) markets is complicated in part because ICT standards spread worldwide and they may cover hundreds or thousands of SEPs in different countries around the world. Different countries have different intellectual property (“IP”) regimes, standardization policies and SEP policies. Private enterprises may try to exploit these differences in an effort in order to dominate global ICT markets. In the past, global multinational corporations (“GMNCs”) based in western market economies have dominated global ICT standard-setting organizations (“SSOs”) and benefited enormously from SEP revenues earned in global markets, but China is now making progress in challenging this system. American telecommunication enterprises are strong innovators and so often obtain first-mover advantage in global markets. When they succeed in dominating global ICT standard setting processes, American telecommunication enterprises receive royalties through licensing SEPs around the world. American standardization policy is “market-led” because private enterprises are the leaders and the U.S. government only plays a supporting role. A major People’s Republic of China (“PRC”) government policy is to reduce or eliminate SEP royalties paid by Chinese enterprises to foreign enterprises, and to promote PRC indigenous standards as global standards, permitting PRC enterprises to collect SEP royalties from foreign sources. However, Chinese telecommunication enterprises are not as strong in innovation capacity as their American competitors. The PRC government encourages domestic enterprises to engage in Indigenous Innovation and to develop indigenous standards, so technology standard-setting in China is not “market-led.” The processes are dominated by the government with the Chinese private sector only playing a supporting role. Both ICT standards and IP may support the construction of global markets through harmonization. To achieve harmonization, the ICT standardization and IP policies that make up national SEP policies should be similar around the world. But U.S. and China have different national cultures of innovation and legal cultures resulting in different SEP policies. Because U.S. and China are today among the most important national markets for the global telecommunication industry, it is interesting and important to consider how their competing SEP policies might support or resist the global harmonization trend. This dissertation uses global 3G international telecommunication standards as a case study to compare U.S. and Chinese regulation of telecommunication technology standardization and national SEP policies. The analysis in this dissertation shows that, although the regulatory competition strategies of the United States and China have evolved over time, they are each largely determined by long-term historical and cultural factors that cannot change quickly. Because national strategies regarding patent law, standardization and SEPs tend to evolve slowly in response to rapidly changing global market conditions, it may be possible to predict the outcome of the coming contest over global 5G telecommunication standards based on the outcomes of contests for control over 2G, 3G and 4G standards.
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