A patent is merely the ticket to the license negotiation
The BSA's main objection to the EIF is that it requires a standard to be "irrevocably available on a royalty-free basis" and impose no constraints on "re-use." Such restrictions don't allow standards that, for example, rely on patents for which a royalty may be charged, according to Müller. Most standards organizations, including the Institute of Electrical and Electronics Engineers, the International Organization for Standardization, the Internet Engineering Task Force and the International Telecommunication Union, allow standards to include patented technology as long as the patent owner licenses the patent claims on reasonable and nondiscriminatory terms, he said.
The problem here is that two special interest groups are clashing over the wrong thing.
- There are people that believe standards must not contain patents that aren't royalty free and available to all, or they can't be considered an "open" standard. The lobbying effort is driven by open source software advocates concerned there may be standards they want to implement in the future encumbered by patents whose licensing terms are incompatible with some of the licensing terms they would choose in their open source software license.
- The BSA is concerned their member's use of software patents to protect their products will be restricted if the policy passes requiring the definition of standard to mandate royalty free patents.
The term "open standard" has historical significance much older than the recent patent debate, and the term "open" typically meant open participation by all interested parties. The lobbiests for the new definition need to understand that their norm re-engineering attempts may not go over well with those of us involved in the standards industry long before the current open source versus patents situation arose, even with those of us that strongly support open source development and licensing. Getting the EU to anchor the terminology in the policy merely gaurantees the debate and eventual moderation of language.
As observed earlier, patents and standards serve different conflicting needs in the economic spectrum. Yes, all real standards organizations have a patent policy, but that's because those organizations and their members need a way to deal with the situation of discovering a patent in the middle of a developing specification after it arises. Every company that thinks they're going to "get rich" by ensuring their solution is the standard loses. When they think by placing a patent in the middle of the specification they will have the toll booth on the bridge when the specification becomes the standard, they're naive. Economics works. The ecosystem looks after itself. One of two things happens:
- The (now angry) developers of the standard go back to the drawing board and that standard with its patent toll exists for as short a period of time as possible, and may even wither immediately on the vine. (While Microsoft actually went out of its way to try to do the right thing in the SenderID debate last Summer, the standards community's response was direct and undeniable when they even thought they were at risk.)
- The patent holder gets mauled by the developers of the standard. (There was a wonderful situation a few years ago where Northern Telecom attempted a strong arm tactic with patents against a particular VITA effort and the VITA members organized legally outside of the standards organization and won.)
Yes, a patent used fairly is a wonderful thing, but it is merely a ticket to the negotiation for a license. Think about what happens when someone gets greedy with a patent. (The definition of greedy here means they don't license but end up in litigation.) They can lose the patent directly in the court proceedings when they sue, OR they can win the judgement and if the "price" is too high get mired in an appeals process where they are further at risk and deeper out of pocket. Think Eolas. Presumably at some time during the proceedings money was offered for an out of court settlement (and it would have anchored the patent for a while longer.) Maybe the money offered was too low, or maybe Eolas got greedy.
A few years ago, someone claimed they had the fundamental patent on web service delivery. All I could think of at the time is that I hoped they sold quickly and comfortably, because they would have immediately run into the legal beagles from Sun, Microsoft, and IBM.
The open source community should look to what was learned in the standards world. While patents are potential problems, economics works. Some are worried that patents are destroying the standards world. That's sort of like worrying that open source is going to commoditize the value out of some finite stack of software.