In the heyday of POSIX in the very early 1990s, two ugly burdens were bogging down the people in the working groups that were actually present to do the technical specification work. One such requirement was placed on the IEEE work from outside. ISO had a say in how it would approve the IEEE standards for ISO standardization and placed considerable additional work on the IEEE groups. The relevant ISO working group wasn't going to help with all the additional work requirements. The Chair of the IEEE Real-time working group observed, "If they're not willing to put their money where their mouth is, they're not a customer." We grabbed it and Corwin's Razor was born.
Let me be clear on a few things before I go further:
- I don't believe software patents are particularly useful. The ability to create in software is easy, as well as the ability to move from idea to prototype to production. It is much easier than delivering pharmaceuticals through the system with long production and testing requirements, or going from drafting table to widget from an assembly line, or a chemical process from lab prototype to scaled manufacturing. A patent's protection is likely less relevant in a world that changes faster for the most part than the length of time it takes a patent application to crawl through the system.
- I believe the USPTO is going to hit a wall in the not too distant future. The lag time in the process (18 to 24 months) means you can do all the right things with respect to patent analysis (and even filing for your own) and ship a product blindly not knowing whether or not you're infringing another person's work. Throwing the burden of proof onto the U.S. federal court system after the fact only exacerbates the legal and economic problems.
- I believe the economics of the situation states standards exist to encourage multiple implementations, while patents exist to protect a single implementation, so by definition these two things serve different diametrically opposed parts of the economics spectrum. (Yes, I'm beginning to sound like a broken record on this point.)
- I believe standards organizations themselves have historically avoided patents as best possible. That doesn't mean that they can avoid patents. Non-participants can show up at any time with patent claims and hamstring a working group's efforts or worse yet the ratified standard. Or collections of vendors might develop patent pools of patents that indirectly relate to a technology space, while they collectively develop a standard directly relating to the space in a standards organization. (I'm thinking VCR machine patents versus tape format specifications. And yes, I choose the example deliberately. It didn't go through a standards org, and I owned a Betamax machine.) It may mean there are interesting business negotiations and barriers to entry outside of the standards organization, but the standards organization is basically unable to be involved in the external activities of its members. Nor should it be involved in such external activities.
So I read the new OASIS IPR policy, the transition policy, and the FAQ. And the old IPR policy as well to appreciate the difficult work that was done. And I read the protest letter signed by many people that are spokespeople within the OSS community-at-large, many of whom I deeply respect. I googled around re-reading several articles (InternetNews, ZDNet) and blogs on the subject (and found a great standards blog to explore).
First, looking at the new OASIS IPR Policy: it's pretty good. It demonstrates a remarkable grasp of the ugly patent situation in which standards organizations are finding themselves with respect to the work of their membership. It demonstrates a clear evolution of thought, and bears witness to the fact they have looked at their previous policy and the situations other standards organizations have faced and they have cleanly documented a policy, giving the broadest possibility for discussion.
Standards are about technology diplomacy. The goal of individual participating members is to expand their area of economic influence, while defending sovereign territory, and the balance point between those two positions is always difficult. The result is a specification document, but the process is a discussion and a negotiation each and every time at every level. The new OASIS IPR policy provides that space for discussion.
The new policy is very clever however in how it approaches the problem of dealing with patents. It forces the individual technical committee to have the discussion about patents before they do work, and thereby obligates them to the course chosen by all.
It protects participants from scope creep that might expose other patents, so those participants should be more willing to have the royalty free discussion up front knowing they aren't writing blank checks on their patent investments. It obligates members to declare patent applications as well as awarded patents, so the group can see things coming. It obligates a member that withdraws to continue with their licensing requirements preventing patent abuse (from the occasional pathological people that would join a group to see where it's going, disengage, and attempt to patent ahead) and members from "changing their mind" and trying to disengage. If the group chooses to opt for RAND-only licensing, this tells the outside world of non-members something about this standard.
One blogger raised the idea of a default to royalty-free with the tech committee having the RAND discussion after the fact if it becomes necessary. If the default was royalty free, none of the members with the ability to make the greatest R&D investment would participate because they would be asked to write blank checks against their intellectual property strategy. The membership of OASIS would move on. Likewise, if a group can change from a royalty free option to a royalty bearing RAND option after the fact, then there is more risk of "large corporate interests" manipulating the system to advantage after the work begins on the standard.
Now for the protest letter. Sorry, my friends, but it is just wrong. The customer of a standards organization is its members. The standards organization is a market oriented discussion forum where like-minded expert and experienced participants come together to agree on a specification that will enable multiple implementations of something. In a perfect world it expands the overall market for a technology by creating a commodity of one component of that technology market. This is why there are so many different standards organizations spanning the multifaceted marketplace. If you're a member of OASIS, then join the discussion, debate the question, and vote. If you're not a member, you aren't a customer, and you don't actually have a say. That is the way standards works.
The interesting thing is that standards are a conversation. There is a debate. And in the end it is a vote the decides the consensus process in a standards group. A measure of the consensus process, however, is the ability to compromise. The heavy-handed demands of the protest letter fly in the face of the discussion and the debate and an ability to compromise. For those of you who signed the letter that may have visited committee meetings to demand your position, you may have noticed the room dynamic was inhospitable. That's because you were demanding. You appear unwilling to debate and more importantly, unwilling to compromise. That too is the way standards works.
Because standards and patents don't mix well economically, most successful standards, and by successful I mean broadly adopted and implemented, were based on well understood existing practise and experience and don't contain patents. Those standards that do end up encumbered get worked around with competing unencumbered designs and implementations (gzip, Ogg), replaced overtime with unencumbered standards, or ignored. This posting is read by you because of the foundation of standards from the IETF and W3C that allowed the Internet and the WWW to thrive and grow.
Another great quote from that period of POSIX standardization was delivered by Roger Martin (then of NIST, now Director of Standards at AOL) when he said, "Standards committees that choose to make themselves irrelevant get what they deserve."
Hopefully this blows over and OASIS can get on with the business of developing standards, most of which won't be royalty encumbered (so will become more broadly adopted), but some of which might be encumbered and less successful, because that's the consensus of the people doing the work.