Setting Standards

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As the world of computing moves to embrace openness in all its forms, open standards are becoming increasingly important – and the battles over them increasingly dirty, as the OOXML standardisation process has shown. One of the most vexed issues within open standards is the place of patents.

There has been much discussion over the terms that patented technologies should be licensed under, something of huge importance to open source.

For if anything other than royalty-free terms are adopted, open source is effectively locked out – something that Microsoft knows full well, which is why it has pushed for “Reasonable and non-discriminatory licensing” (RAND). At first sight, this appears fair enough – after all, if it is non-discriminatory, what's not to like?

But the point is that it is not possible for free software programs to support even nominal licensing fees, since the unlimited, unchecked distribution of code makes it impossible to monitor how much should be paid.

But there is another aspect to the issue of whether patented technologies should be allowed at all when drawing up standards, and that is the matter of disclosure.

One particularly sneaky trick is to take part in standards-setting processes without declaring the existence of certain key patents, and then to reveal them afterwards once they have been enshrined in those standards, leaving participants little option but to pay up – the so-called “patent ambush”.

At least, that has been the cynical theory until now, but a recent US court case offers some hope that this underhand attitude is finally getting its comeuppance:

The U.S. Court of Appeals for the Federal Circuit agreed Monday that Qualcomm should be punished for what has in other cases been called a "patent ambush" -- not disclosing patents to a standards-setting body and then suing adopters of the standard. In this case, Qualcomm's target was Broadcom.

Upholding most of a 2007 Southern District of California court opinion, the three-judge panel limited Qualcomm's ability to enforce the two video compression patents it hid from a standards-setting group (pdf) called the Joint Video Team. It also must pay the attorneys fees awarded to Broadcom, totaling more than $8.5 million.

...

"The courts are showing a willingness to find a duty to disclose where there's none set forth," said Tyler Baker, a partner at Fenwick & West in Mountain View. "It says that you should err on the side of assuming that you have to disclose, or you may suffer the consequences of having your patent made unenforceable if you don't."

Of course, a better solution would be to demand that technologies used in standards were completely in the public domain, or – best of all - that we simply abolish these intellectual monopolies completely. That may be a little too much to hope for presently; in the meantime, the latest ruling in the US is at least a step in the right direction.

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