The CP also solves the case better. Lack of copyright incentivizes SDOs to improve, which accesses both advantages.
Simcoe 05 – Professor of Strategic Management at the University of Toronto, PhD in Business Administration and M.A. in Economics from the University of California at Berkeley.
Tim Simcoe, “Chapter 8: Open Standards and Intellectual Property Rights,” Open Innovation: Researching a New Paradigm, 09-16-2005, https://people.bu.edu/tsimcoe/documents/published/OpenStandards_IPR.pdf
As the U.S. innovation system continues to evolve towards the Open Innovation model, it is important for firms in industries where standards are important to recognize the potential costs associated with their IPR strategies. In particular, aggressive IPR strategies can reduce the expected value of a standard and slow down the standards creation process. While these aggressive strategies may be perfectly legitimate from a legal perspective and strengthen (at least in theory) the incentives for small-firms to commercialize their innovations, it is important to recognize that these strategies increase the severity of the trade-off between value creation and value capture.
SSOs also need to understand how the trend towards Open Innovation potentially complicates their job of providing a forum for informed decision-making in the creation of new compatibility standards. IPR policies based on little search, vague licensing rules and lax enforcement are likely to lead to time-consuming and expensive controversies along the lines of the Rambus case. While SSOs are clearly constrained by the need to encourage participation—and potentially by competition with other SSOs—they should strive to update their IPR policies in a way that promotes transparency in the standard setting process while respecting the legitimate rights of IPR holders.