[OpenISO] Patents, OpenISO, and RAND licensing

[David Sugar]

No...

Let me rephrase that...

HELL NO!

Okay, I will elaborate...

When we speak of international standards, especially those that may 
become mandated by law or otherwise required to enter and participate in 
markets, these are fundamentally incompatible with patenting, even under 
RAND.

Forcing someone to license a patent to offer a mandated feature in 
effect enables private taxation of the public, by making the bargaining 
authority, which in some cases may be national governments, de-facto tax 
collection bodies for private interests.

Historically when we have patenting in fields where the scope are 
applicable (such as in traditional hardware patenting), a vendor may be 
free to develop workarounds and alternate solutions.  There are separate 
issues why this is impossible in software and other areas of expression. 
  However, this also no longer becomes possible with what may become 
mandated international standards.

And we must consider what is even reasonable and non-descriminatory? 
Often what sounds fine for a group of proprietary vendors to select is 
given such consideration.  For example, it may be decided by vendors, 
and perhaps recognized by governing bodies such as the US DOJ that it is 
both completely reasonable for Microsoft to charge $10,000 plus 
royalties for access to and licensing of communication protocols, and 
non-discriminatory since the same conditions apply to all potential 
licensor's.  However, such terms and conditions clearly does 
discriminate against those who might otherwise choose to participate in 
freedom.

Norbert Bollow wrote:
> Kenneth <kenneth.info at gmail.com> wrote:
> 
>> Lets see if this works . .  .
> 
> (Administrative note: Since you posted this from a non-subscribed
> email address, the posting was at first held for manual approval
> by Mailman.  I've approved it and whitelisted the sender email
> address.  Unless you're already subscribed with a different email
> address, I would encourage you to subscribe to the mailing list.)
> 
>> I personally think that requiring a covenant not to enforce patents
>> may discourage some organizations from the OpenISO standards process.
> 
> Yes, this is certainly true.
> 
> What we need to figure out is whether the disadvantages of the
> requirement outweigh the advantages or not.
> 
>> Patents, if handled in a transparent manner, can be delt with.
>>
>> For exmaple, take the MPEG-2 standard.  [..]
> 
> I agree that *if* (like in this case) patents are disclosed and
> RAND-licensed, they don't pose a problem of principle for vendors
> of *tangible goods* which implement the patented ideas.
> 
> However for standards about anything that can be implemented in
> software for general-purpose computers, I think that the ISO
> requirement of tranparency plus RAND licensing is clearly not
> open enough, because it does not guarantee the ability to
> implement in Free Software.
> 
> In many areas of information technology, Free Software is the
> main competition to a dominant near-monopoly vendor.  Isn't it
> therefore obvious that it is totally unacceptable to accept
> any specification as a "standard" which for patent reasons
> cannot be implemented in Free Software?
> 
>> I propose a ranking system for the intellectual property (IP) issues
>> like the ranking system for the technical issues:
>>
>> 1 - intellectual property issues unclear and possibly dangerous
>> [Example: the OOXML system may earn a 1 because full implementation of
>> the standard could potentially infringe MS patents and it is unclear
>> what patents MS covenents not to enforce.]
> [ Comment about the example: An additional issue with OOXML is that
> it is unclear whether the MS "open specification promise" actually
> means anything substantial in the OOXML context, because that promise
> is only about "requirement elements of covered specifications" and if
> you read the OOXML specification, very very little is actually
> required there of conforming implementations.  I have corresponded
> with Microsoft about this point, but they have been evading the
> issue by consistently responding to my questions with true statements
> that didn't answer the questions. ]
> 
>> [2, 3, 4]
>> 5 - intellectual property issues very clear.  [Example: a standard
>> whose technical contributors have expressly agreed not to enforce
>> patents; a patent pool is established; known, predictable licensing
>> fees or free.]
> 
> I think that such a ranking system is a very good idea, and I would
> encourage suggestions of objective, verifiable criteria upon which
> the ranking could be based.
> 
> By the way, I think that such a detailed ranking system is only needed
> for patent issues.  Is that what you mean?  (I do not think that in
> the present context it is helpful to group patent rights with other
> rights like copyright, and "intellectual property" is anyway a
> propaganda term for a specific ideology regarding rights about
> immaterial goods.)
> 
>> A standard with a high technical ranking but a low IP ranking would
>> encourage the patent owners to contribute to the pool and offer free
>> licenses or non-discrimatory licenses at a reasonable royalty to
>> anyone - all for the purpose of improving the IP ranking of the
>> standard.
> 
> Would this mechanism be more effective than the more radical position
> of requiring a patent non-assertion covenant which covers all
> implementations of the standard?
> 
>> You could even establish "defensive patent pools" where a company says
>> that they will use their patents offensively against anyone who
>> enforces a patent agains the standard.
> 
> Yes... while this is not something that I'd personally be inclined to
> work on, if someone is interested in working on under the OpenISO.org
> umbrella on establishing such defensive patent pools, I'd support
> such projects.
> 
> Greetings,
> Norbert.
> 
> 
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