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<h1 align="center">Analysis on balance:<br />Standardisation and Patents</h1> |
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<h3 align="right">-- by <a href="/about/greve/">Georg C. F. Greve</a><br /> |
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FSFE, President</h3> |
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<p class="indent"><em>This paper provides an analysis of the |
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interaction of patents and standards. It was written under the |
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assumption of very little background knowledge, and therefore |
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provides some of the background necessary to understand the |
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issue. An expert in the field should be able to skip the |
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Background section. |
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interaction of patents and standards and finishes with some |
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concrete proposals to address the most pressing issues. It was |
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written under the assumption of very little background knowledge, |
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and therefore provides some of the background necessary to |
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understand the issue. An expert in the field should be able to |
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skip the Background section. |
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</em></p> |
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<p align="right"><em> |
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-- <b><a href="/about/greve/">Georg C. F. Greve</a></b> |
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<br />FSFE, President |
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<br />2. December 2008 |
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</em></p> |
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<h2>Introduction</h2> |
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@@ -184,7 +188,7 @@ FSFE, President</h3> |
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on a standard use this mechanism to commit to licensing terms while |
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the standard is still being drafted. If these terms are not |
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acceptable to the other parties working on the standard, the |
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technology that is covered by the patent is not included into the |
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technology that is covered by the patent is not included in the |
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standard.</p> |
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<p>What are acceptable terms is highly subjective. A large corporation |
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@@ -289,7 +293,7 @@ FSFE, President</h3> |
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favors large companies, which not only have deeper pockets, they |
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also have larger legal departments and patent portfolios.</p> |
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<p>It is this uncertainty that has caused great frustration among SME, |
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<p>It is this uncertainty that has caused great frustration among SMEs, |
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which Charles Schulz of Ars Aperta summarised as RAND referring to |
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"RANDom licensing at the sight of competitors." |
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In <a href="http://ec.europa.eu/enterprise/ict/policy/standards/ws08ipr/presentations/25schulz_en.pdf">his |
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<p>In standards, the situation is somewhat similar. If patents are |
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part of a standard, only an implementation that is covered by the |
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patents provides an effective antitdote to monopolisation. Having to |
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circumvent patents will break standards compliance and harm the |
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circumvent patents will generally break standards compliance and harm the |
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public benefit that is the driving force behind standardisation.</p> |
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<p>So patents in standards have the potential to make full |
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exists that would have the additional value of not violating a |
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potential patent on the standard, an implementor would choose to |
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follow the technologically inferior standard in order to have full |
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access to the market. Such a case turns the initial idea upside |
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down: The technology is valuable because it is patented, not |
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access to the market. Such a case reverts the initial idea of |
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patenting: The technology is valuable because it is patented, not |
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patented because it is valuable.</p> |
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<p>There are also cases where certain standardisation organisations, |
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@@ -387,8 +391,8 @@ FSFE, President</h3> |
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<h2>Attempted remedies</h2> |
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<p>Good patent research costs around 100.000 EUR according to Rigo |
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Wenning, Legal Counsel & Patent Policy Team Contact of the |
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<p>Good patent research costs around 100.000 EUR per case according to |
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Rigo Wenning, Legal Counsel & Patent Policy Team Contact of the |
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W3C/ERCIM who spoke about |
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"<a href="http://ec.europa.eu/enterprise/ict/policy/standards/ws08ipr/presentations/22wenning_en.pdf">Standards, |
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Patents and the Dynamics of Innovation on the Web</a>." The W3C is |
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@@ -477,13 +481,12 @@ order to preserve its business."</em></quote> |
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in the past. But some basic parameters have changed, while patents |
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have been extended in an essentially unreflected way to more |
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areas. This is particularly true for software, where patents play no |
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meaningful role in disclosure, breaking the patent deal for |
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society. More importantly, while the time of bringing new innovation |
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to the market and the time between groundbreaking discoveries has |
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been decreasing.</p> |
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meaningful role in disclosure, breaking the patent deal for society |
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whereas the time of bringing new innovation to the market and the |
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time between groundbreaking discoveries has been decreasing.</p> |
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<p><a href="http://en.wikipedia.org/wiki/Ray_Kurzweil">Raymond |
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Kurzweil</a> found an exponential pattern in innovation reach back |
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Kurzweil</a> found an exponential pattern in innovation reaching back |
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all the way to single-cell organisms. Concluding that this must be |
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a universal principle, Mr Kurzweil has been |
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making <a href="http://en.wikipedia.org/wiki/Predictions_made_by_Raymond_Kurzweil">predictions</a> |
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@@ -525,7 +528,7 @@ order to preserve its business."</em></quote> |
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<h2>Potential Remedies</h2> |
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<h3>Interoperability trumps patent</h3> |
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<h3>1. Interoperability trumps patent</h3> |
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<p>During the software patent debate in the European Union there was |
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consensus among SME, Free Software and big businesses |
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@@ -543,7 +546,7 @@ order to preserve its business."</em></quote> |
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extraordinary networking effects that exist in this market, such a |
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preference seems justified.</p> |
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<h3>Update policy in SSOs</h3> |
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<h3>2. Update policy in SSOs</h3> |
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<p>Secondly, Standard Setting Organisations (SSOs) could update their |
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patent policies to ensure that their standards are usable in all |
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@@ -563,7 +566,7 @@ order to preserve its business."</em></quote> |
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to assign their copyright to the SSO. Applying appropriate similar |
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measures on patents for similar reasons seems justified.</p> |
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<h3>Provide intermediate and migration possibilities</h3> |
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<h3>3. Provide intermediate and migration possibilities</h3> |
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<p>Many patent-encumbered standards already exist, and even if WIPO |
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ends up agreeing on a general interoperability preference, it will |
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@@ -582,7 +585,7 @@ order to preserve its business."</em></quote> |
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<p>Taking this step would also realign ITU-T, ITU-R, ISO and IEC again |
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with their declared Common Patent Policy.</p> |
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<h3>Update governmental procurement guidelines</h3> |
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<h3>4. Update governmental procurement guidelines</h3> |
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<p>Governments and Inter-Governmental Organisations should update |
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their procurement guidelines to procure only products based upon |
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@@ -594,7 +597,7 @@ order to preserve its business."</em></quote> |
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<hr /> |
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<p class="indent"><em>DISCLAIMER: This paper was written from the |
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<p><em>DISCLAIMER: This paper was written from the |
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perspective of an expert in the field of software. The conclusions |
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may apply in their entirety, partially, or not at all to areas |
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other than software. |