Standardisation and Software Patents
Documenting standardisation, the organisations that work on it and the effects of patents on their work.
News & Chronology
2005-12-15 DE Heise: ETSI New patent policy
2004-11-26 EU NewBrainframes.org: EC Announces Defintion of "Open Standards": no patent royalties (--> OpenStandardsEn)
2004-11-09 EU standardisation panel at FFII/MERIT conference
2004-08-25 UN CEFACT jeopardised by "IP", MS drops out
Standardisation bodies often find their work encumbered by patents. JPEG ceased to be a standard, because Forgent Inc discovered a "Rembrandt in the Attic" and started suing users of the standard. Rambus Inc smuggled its patented methods into a standard which it was creating together with other consortium members and later started charging royalties from users of that standard. The MPEG4/LA and GSM group's main work consisted in pulling together owners of 50/200 patents and making them agree on a joint uniform-fee licesing policy (euphemistically called "reasonable and non-discriminatory" (RAND)). The W3C was a place of intense fight over whether uniform-fee standards (which exclude free/open-source software and perhaps shareware) should be admitted.
Usually standards work productively only if they can be used by everybody without cost. If any party can control a standard (often the case with de-facto standards), it gains monpolistic power which stifles downstream markets and imposes incommensurate costs on users, who are nevertheless often locked in to the standard by the network effects. The presence of software patents makes it difficult and costly for standardisation bodies to make standards work productively. Also, it further entrenches control of big companies and specifically of the patent lawyers of these companies over the process of standardisation. To address these problems, the European Parliament has proposed Art 6a of the software patent directive, which states that the use of a patented technique for the purpose of interoperation is not an infringement. However this is meeting virulent opposition from the patent movement, which has succeded in bringing the European Commission and most national governments onto its bandwagon.
We try to document the effect of patents on various standardisation efforts.
- In some cases, a standard comes with some kind of licensing restrictions, or involves something that someone has a patent on. For instance, Unisys had a patent governing a bit of the algorithm used for GIF images. In general, patents are a huge weakness for a standard. The MP3 standard is used very widely by people who simply don't know -- or don't care -- that someone theoretically has a patent on part of it, and only some code using the patented algorithm actually has a license from the patent holder. Developers and users can be bitten by this many years after they make the design decision to use a patented algorithm, due to the nature of patents (see Resources). De jure standards often require contributors to clearly disclose any known patents; de facto standards generally have no way to do this.