Technology standards development, patent ambush, and US antitrust policy

Patent ambush, an unresolved issue for many US standards development organizations (SDOs), is utilized with increasing frequency by opportunistic firms, and thus poses a real challenge for the US de jure standards development process. Regardless of preemptive patent ambush policies that have been formally enacted by SDOs, there continues to be the occasional firm that opts to implement a patent ambush strategy. Still, by creating legal and organizational barriers, SDOs can create a less-hospitable environment for such a strategy. For example, a Federal Trade Commission/Department of Justice Enforcement Policy Statement addressing patent ambush will provide the standards development community with added clarification of potential antitrust violations and the resulting possibility of enforcement actions. Furthermore, vigorous defenses by 'patent infringers' will establish increased legal clarity on this issue and provide an SDO policy framework to effectively eliminate the use of the patent ambush strategies by future standards-setting participants.