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<dynamic-content />
<h3>Publications at IGF</h3>
<ul>
<li>"<a href="ps.html">Analysis on balance: Standardisation and Patents</a>"<br />by <a href="/about/greve/">Georg Greve</a></li>
</ul>
<h3>Publications at the IGF</h3>
<ul>
<li>"<a href="/projects/igf/sovsoft">Sovereign Software: Open Standards, Free Software, and the Internet</a>"<br />FSFE contribution to the first <a href="/projects/igf/igf">IGF</a>, by <a href="/about/greve/">Georg Greve</a></li>
</ul>

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<h1 align="center">Analysis on balance:<br />Standardisation and Patents</h1>
<h3 align="right">-- by <a href="/about/greve/">Georg C. F. Greve</a><br />
FSFE, President</h3>
<p class="indent"><em>This paper provides an analysis of the
interaction of patents and standards. It was written under the
assumption of very little background knowledge, and therefore
provides some of the background necessary to understand the
issue. An expert in the field should be able to skip the
Background section.
interaction of patents and standards and finishes with some
concrete proposals to address the most pressing issues. It was
written under the assumption of very little background knowledge,
and therefore provides some of the background necessary to
understand the issue. An expert in the field should be able to
skip the Background section.
</em></p>
<p align="right"><em>
-- <b><a href="/about/greve/">Georg C. F. Greve</a></b>
<br />FSFE, President
<br />2. December 2008
</em></p>
<h2>Introduction</h2>
@ -184,7 +188,7 @@ FSFE, President</h3>
on a standard use this mechanism to commit to licensing terms while
the standard is still being drafted. If these terms are not
acceptable to the other parties working on the standard, the
technology that is covered by the patent is not included into the
technology that is covered by the patent is not included in the
standard.</p>
<p>What are acceptable terms is highly subjective. A large corporation
@ -289,7 +293,7 @@ FSFE, President</h3>
favors large companies, which not only have deeper pockets, they
also have larger legal departments and patent portfolios.</p>
<p>It is this uncertainty that has caused great frustration among SME,
<p>It is this uncertainty that has caused great frustration among SMEs,
which Charles Schulz of Ars Aperta summarised as RAND referring to
"RANDom licensing at the sight of competitors."
In <a href="http://ec.europa.eu/enterprise/ict/policy/standards/ws08ipr/presentations/25schulz_en.pdf">his
@ -344,7 +348,7 @@ FSFE, President</h3>
<p>In standards, the situation is somewhat similar. If patents are
part of a standard, only an implementation that is covered by the
patents provides an effective antitdote to monopolisation. Having to
circumvent patents will break standards compliance and harm the
circumvent patents will generally break standards compliance and harm the
public benefit that is the driving force behind standardisation.</p>
<p>So patents in standards have the potential to make full
@ -360,8 +364,8 @@ FSFE, President</h3>
exists that would have the additional value of not violating a
potential patent on the standard, an implementor would choose to
follow the technologically inferior standard in order to have full
access to the market. Such a case turns the initial idea upside
down: The technology is valuable because it is patented, not
access to the market. Such a case reverts the initial idea of
patenting: The technology is valuable because it is patented, not
patented because it is valuable.</p>
<p>There are also cases where certain standardisation organisations,
@ -387,8 +391,8 @@ FSFE, President</h3>
<h2>Attempted remedies</h2>
<p>Good patent research costs around 100.000 EUR according to Rigo
Wenning, Legal Counsel &amp; Patent Policy Team Contact of the
<p>Good patent research costs around 100.000 EUR per case according to
Rigo Wenning, Legal Counsel &amp; Patent Policy Team Contact of the
W3C/ERCIM who spoke about
"<a href="http://ec.europa.eu/enterprise/ict/policy/standards/ws08ipr/presentations/22wenning_en.pdf">Standards,
Patents and the Dynamics of Innovation on the Web</a>." The W3C is
@ -477,13 +481,12 @@ order to preserve its business."</em></quote>
in the past. But some basic parameters have changed, while patents
have been extended in an essentially unreflected way to more
areas. This is particularly true for software, where patents play no
meaningful role in disclosure, breaking the patent deal for
society. More importantly, while the time of bringing new innovation
to the market and the time between groundbreaking discoveries has
been decreasing.</p>
meaningful role in disclosure, breaking the patent deal for society
whereas the time of bringing new innovation to the market and the
time between groundbreaking discoveries has been decreasing.</p>
<p><a href="http://en.wikipedia.org/wiki/Ray_Kurzweil">Raymond
Kurzweil</a> found an exponential pattern in innovation reach back
Kurzweil</a> found an exponential pattern in innovation reaching back
all the way to single-cell organisms. Concluding that this must be
a universal principle, Mr Kurzweil has been
making <a href="http://en.wikipedia.org/wiki/Predictions_made_by_Raymond_Kurzweil">predictions</a>
@ -525,7 +528,7 @@ order to preserve its business."</em></quote>
<h2>Potential Remedies</h2>
<h3>Interoperability trumps patent</h3>
<h3>1. Interoperability trumps patent</h3>
<p>During the software patent debate in the European Union there was
consensus among SME, Free Software and big businesses
@ -543,7 +546,7 @@ order to preserve its business."</em></quote>
extraordinary networking effects that exist in this market, such a
preference seems justified.</p>
<h3>Update policy in SSOs</h3>
<h3>2. Update policy in SSOs</h3>
<p>Secondly, Standard Setting Organisations (SSOs) could update their
patent policies to ensure that their standards are usable in all
@ -563,7 +566,7 @@ order to preserve its business."</em></quote>
to assign their copyright to the SSO. Applying appropriate similar
measures on patents for similar reasons seems justified.</p>
<h3>Provide intermediate and migration possibilities</h3>
<h3>3. Provide intermediate and migration possibilities</h3>
<p>Many patent-encumbered standards already exist, and even if WIPO
ends up agreeing on a general interoperability preference, it will
@ -582,7 +585,7 @@ order to preserve its business."</em></quote>
<p>Taking this step would also realign ITU-T, ITU-R, ISO and IEC again
with their declared Common Patent Policy.</p>
<h3>Update governmental procurement guidelines</h3>
<h3>4. Update governmental procurement guidelines</h3>
<p>Governments and Inter-Governmental Organisations should update
their procurement guidelines to procure only products based upon
@ -594,7 +597,7 @@ order to preserve its business."</em></quote>
<hr />
<p class="indent"><em>DISCLAIMER: This paper was written from the
<p><em>DISCLAIMER: This paper was written from the
perspective of an expert in the field of software. The conclusions
may apply in their entirety, partially, or not at all to areas
other than software.