This post first appeared on SEP Essentials.
This is my second post in response to the Department of Commerce of the United States government in conjunction with the U.S. National Institute of Standard and Technology (“NIST”) request for stakeholders and the public to provide input into Implementation of the United States Government National Standards Strategy for Critical and Emerging Technology.[1] This post focuses on when the government should intervene to foster standards development and what other support the government and NIST can provide to encourage the adaption and implementation of useful standards “for the benefit of humanity.”
When is government support and intervention needed for successful standards development?
In my first post (which you can find here: Input on the United States Government National Standards Strategy for CET – Part 1 (sepessentials.com)), I discussed the conditions under which successful “private”[2] standardization is likely to succeed. Government support and intervention in standards development is rarely needed when those conditions are met. But there are circumstances in which private standardization is not likely to be successful and government support of the development process is warranted.
So, when is such support needed during the development process? First and foremost, such support is needed when the public interest is in standardization, but the existing implementers have not created, and are uninterested or unwilling to create, a viable standard. Looking at the Critical and Emerging Technologies List Update[3], there are a number of technologies for which it would be in the public interest to have successful standards. These include batteries and battery storage, certain energy efficiency technologies and energy grid integration. Not on the list but also in my view critical are: (a) standards for the reduction, reuse and recycling of plastics; (b) EV charging technologies (although maybe this comes under energy efficiency technologies); and (c) sustainable, environmentally friendly building techniques and building materials (there are standards in this space but they do not seem to focus on the right things, are difficult and expensive to implement and have not been widely adopted).
You can see a theme developing here, many green technologies need government support for successful standards development. That is because, while many green technologies are highly beneficial to the public and to the overall public good, they may be detrimental to an individual company’s bottom line (for example, the plastics industry is unlikely to sell more plastic by practicing a standard that requires plastic products to be designed for long term use and which eliminates all single use plastics). Or they may be technologies for which the public would benefit from standardization, but the companies involved have used that technology to differentiate themselves (EV charging). Or they may be technologies for use in a highly fragmented industry (such as the construction industry) in which it is very difficult to bring together the right mix of large, small and medium sized enterprises with the expertise and motivation necessary to develop a successful, widely-used standard. Green technologies need the most government support during the development process because they tend to have a lot of disparate stakeholders with un-aligned interests and little financial incentive for implementation (because, for example, the costs of a failure to implement are borne by the public and not by the potential implementers).
When private standardization has not happened or has not been successful at creating a widely adopted standard and when standardization is in the public interest, the government could choose to legislate or regulate a solution (for example, California has legislated no new gas hookups in residential construction going forward which could be considered a form of construction industry standardization). But in general, and particularly for complex technologies, the process will result in a better outcome if input from various stakeholders is used to create a viable and useful standard rather than only relying on legislation or regulation.[4]
How can the U.S. government and NIST help make that happen?
In these circumstances, the government could work with stakeholders to set the parameters for what is required. For example, for the energy grid, the government could work with stakeholders to set the required parameters for improved safety and security, connection of renewable and small-scale electricity generation, increased energy efficiency of transmission, etc. The government could also help connect those stakeholders and the appropriate standards development organization. NIST could play a role in making those connections happen. So, in the energy grid example, the government, working with NIST, could bring together not just large energy generators but small ones as well, large and small energy distributors and energy consumers, appropriate academics and civil society organizations, the grid operators and smart grid technology makers and connect them with a standards development organization with some expertise in developing energy related standards.[5] NIST could also help the appropriate, existing SDOs develop expertise for new and emerging technologies where such expertise is lacking.
The government could also provide subsidies to SMEs that participate in these types of standards development so that those SMEs have the resources needed to participate. But, after helping to create the right environment for a standard to be developed, government should, in the first instance, allow those diverse stakeholders the autonomy to try to create a viable standard. It is more likely that the right mix of industry and other stakeholders can create a viable, useful standard than that the government can legislate one. Once initiated, the government should only step into the actual development process if the stakeholders are unable to make reasonable progress to satisfy the required parameters. NIST could be charged with interfacing with the development organizations to monitor whether the stakeholders are making reasonable progress in the development efforts for these types of standards.
When Should the U.S. Government Require Standards Adoption?
An equally important question is when is government intervention needed in order to force adoption of a standard? The answer is pretty much the same – when (i) the public interest in adoption is significant and (ii) companies are unlikely to implement a particular standard if not required and/or when implementers of a publicly useful standard would be at a competitive disadvantage (because for example, the cost of implementation is high or the benefit to an individual implementer of the standard is low, but the benefit to the public of adoption is high).[6]
What Other Government Help Would be Useful to Support Successful Standardization?
As discussed above, sometimes the best support is for the government to work with stakeholders to set the parameters for what is needed and to help get the right stakeholders and right standard development organization together to create a standard. But there are other types of help and support that the US government (and NIST) can provide to encourage successful standardization and implementation.
The government should create a regulatory environment that drives successful adoption of useful standards. This can run the gamut from opening up bandwidth for telecommunication standards[7] to requiring adoption of standards that are in the public interest. NIST could act as an interface between the standard development organizations and the US government to help determine what types of regulatory change would be useful. And, when regulatory change is needed or advisable, NIST could help host forums between the appropriate stakeholders and regulatory bodies so that input can be properly received.
When appropriate, the U.S. government should work proactively with other countries to support uniform, world-wide standards, particularly when different countries seek to adopt different standards for the same types of technology (those pesky power plugs). The same holds true for regulatory changes needed for such standardization to be successful: the U.S. government should proactively work with its foreign counterparts to make necessary regulatory or legislative changes happen. For example, opening up the 6 GHz band requires a coordinated, international effort and the U.S. could be a driving force in encouraging other countries to make that happen.
If requested, the U.S. government (and possibly NIST) could also play a role in helping to mediate disputes between different standard setting organizations about the adoption of uniform world-wide standards.[8]
Finally, in order to support free and fair market competition for standardized products, the US government should work with other governments to make sure the FRAND"Fair, Reasonable, and Non-Discriminatory" licensing. A licensing commitment made for standard-essential patents in the context of technology standard setting activities. See also RAND. commitment is meaningfully enforced and that other governments (including their courts) do not overreach. Successful standardization requires implementation. Implementers should be able to fairly use a standard without fear of unreasonable royalties or injunctions issued without consideration of the FRAND"Fair, Reasonable, and Non-Discriminatory" licensing. A licensing commitment made for standard-essential patents in the context of technology standard setting activities. See also RAND. commitment or the equities of the situation. Furthermore, without consent, companies should not be forced to litigate world-wide rates in distant courts. The U.S. government could work for changes to TRIPSThe Agreement on Trade-Related Aspects of Intellectual Property, an annex to the World Trade Organization (WTO) Agreement of 1994. TRIPS established minimum standards for intellectual protection that is generally perceived to reflect the interest of developed economies in exporting more robust protection for intellectual property rights. to make sure that no longer can happen.[9]
[1] https://www.federalregister.gov/documents/2023/09/11/2023-19667/joint-ita-nist-uspto-collaboration-initiative-regarding-standards-notice-of-public-listening-session
[2] By “private” I mean the normal standardization process in which a group of entities voluntarily get together in a non-governmental standard development organization (such as the IEEE, IETF or 3GPP) to develop a standard.
[4] Of course, the legislation/regulation route is available if the participants are unable to create a viable standard or it can be used after the creation of that standard to require implementation when appropriate.
[5] Some of this framework already exists within individual government bodies, see Standards Development and Revision | Department of Energy, but it would be useful to have an organization to coordinate such development efforts, help identify stakeholders and encourage smaller stakeholders to participate, oversee the overall framework for such development and monitor the development process to make sure it is proceeding in a timely fashion.
[6] See the link in [5] – the Department of Energy has a rulemaking phase as part of its mandate to help establish energy-efficiency standards.
[7] For example, as Andrew Myles discussed in INTERVIEW WITH ANDREW MYLES – PART 1 (sepessentials.com), the successful development of the original Wi-Fi standard was aided by the opening up of the 5 GHz band and the current development efforts would be aided by opening up of the 6 GHz band on a world-wide basis.
[8] For example, having an entity to mediate might have been useful when the American National Standards Institute (“ANSI”) and the International Organization for Standards (“ISO”) held up adoption of the new WiFi standard (WiFi6/802.11ax) because of issues around the IEEE’s Intellectual Property Rights policy and negative Letters of Assurance. See Interview with Andrew Myles – Part 2 (sepessentials.com).
