This chapter underscores the importance of maintaining strong patent rights to protect incentives to innovate and ensure U.S. leadership in the 5G developments arena. The chapter covers doctrinal developments reflected in approaches to SEP licensing frameworks by the U.S. focusing on policy statements, agency action (including speeches, statements of interest, and amicus participation), and court rulings over the years. The chapter contextualizes these developments with global advances in the antitrust treatment of patent licensing, also touching on case law in Europe and developments in China. We highlight the potential for more changes to come in the U.S. approach to the intersection of intellectual property (IP) and antitrust law that may, in fact, bring the U.S. more in line with the European approach, specifically surrounding FRAND licensing commitments and negotiation disputes. Throughout, our review of lessons learned to date guides recommendations highlighting the legal and economic principles that should ultimately govern IP and IP-related competition policy in the 5G ecosystem.

Chapter 12 discusses the specificatio (mistaken improver) doctrine. About two-thirds jurisdictions have this doctrine, and the doctrinal structure is highly convergent. Most of these jurisdictions limit the application of the doctrine when the nonconsensual improvement is irreversible, and most assign sole ownership to either original material owners or improvers. Almost all jurisdictions adopt the disparity-of-value test and/or the transformation test, but there are eight ways that bad-faith improvers are treated. The disparity-of-value test, in and of itself, does not tend to assign ownership to higher valuers, however. While no ex ante rule-making can ensure allocative efficiency ex post, requiring both the disparity-of-value test and the transformation test is more likely to increase efficiency. Lawmakers looking for a radical reform proposal may also adopt the internal auction mechanism to resolve the problem in specificatio. Besides, even good-faith improvers should not be compensated, as the non-transformative, low-value-increasing improvements are unlikely to be what material owners want. A clear rule of no compensation also decreases litigation cost.