[A2k] IP-Watch: Concerns Voiced At WIPO Over Potential Conflicts Between IP And Standards

[Thiru Balasubramaniam]

http://www.ip-watch.org/weblog/2009/03/25/concerns-voiced-at-wipo-over-pote=
ntial-conflicts-between-ip-and-standards/

25 March 2009
Concerns Voiced At WIPO Over Potential Conflicts Between IP And
Standards
By Kaitlin Mara @ 4:28 pm

Regulatory caution on technology standards and intellectual property
rights is increasingly necessary, as technology - and the need for
interoperability between platforms - dominates the market economy as
well as global communications, said a panel on patents and standards
Monday.

One way to address this might be through a government procurement
agreement to include open standards, they said.

=93Both patents and standards are instruments from the toolbox of
innovation policy, but they are different instruments,=94 said Georg
Greve of the Free Software Foundation Europe. =93Patents,=94 he said, =93ar=
e
intended for private, personal use [while] standards are intended for
public use.=94

=93They are diametrically opposed in practice=85 maximising one instrument
invalidates the other,=94 he added.

A side event organised by Knowledge Ecology International (KEI) in
conjunction with the World Intellectual Property Organization Standing
Committee on the Law of Patents, meeting from 23 to 27 March, the
event explored in depth the issue of patents and standards, and in
particular what could go wrong if they are misapplied. The issue of
patents and standards is on the agenda of this week=92s WIPO meeting, as
members discuss a secretariat document on the topic.

=93Conflicts between patents and standards occur when the implementation
of a technical standard calls for the use of technology covered by one
or more patents,=94 said Ahmed Abel Latif of the International Centre
for Trade and Sustainable Development (ICTSD). =93In such situations,
the potential of anticompetitive practices, exclusion of competitors
and high licensing costs increases.=94

IP-protected standards can cause particular problems for developing
countries for several reasons, Latif said. The technical and financial
capacity needed to keep up with evolving international standards -
particularly in information and communications technology and
electronics - is often lacking in poorer nations. Searches required to
determine what patents exist on a particular standard are expensive
and difficult.

A good patent research can cost about =80100,000, said Greve -
prohibitively high for quite a few small and medium sized enterprises.

The process for obtaining licences for technology needed to meet
international standards can also be burdensome, he added, and all
these issues together can serve =93to secure the advantages of existing
global trade players.=94

There is the added issue, said Greve, that standards are written by
people and therefore are subject to copyright law. There is a
precedent for the author to be able to transfer such rights to a
standards body itself, though for patents that kind of precedent does
not yet exist.

If these issues are not addressed, said An Baisheng of the South
Centre, then a number of adverse effects result: unfair competition,
exorbitant royalties, consumer struggles with things like mobile
telephones and access to the internet, and even national security
problems - if military information structures are based on proprietary
technology.

Also, there is concern about patent =93trolls=94 who wait for standards to
be deployed before revealing their rights over some technology
essential for the standard, said Greve.

=93There=92s a whole industry of people whose main product is lawsuits,=94
said James Love, director of KEI, adding =93this has been a drag on
innovation, and on productivity.=94

These issues are particularly problematic with software, he added, as
patents on data formats create special issues of interoperability (the
value added to data is created by the user, but if it is locked up
then access to that value is limited), and any interoperability
problems on free software immediately makes it =93un-free.=94

=93Standards need to be understood as an innovation enabler, and a basis
for innovation,=94 said Greve.

One way this could be done, said Love, is through government
procurement.

Governments, Love added, have the power to set norms. =93If there was an
agreement among major purchasers that they must have open standards in
some area=94 of technology, then =93they could potentially influence
decisions of private parties,=94 he said.

Government procurement could preference open or interoperable
standards, said Latif. Binding obligations to disclose all relevant IP
information on standards, as well as the involvement of competition
authorities in work on standards to ensure anti-competitive practices
are not used, could also help.

Ultimately, said Greve, increasing the transparency of the system is
useful.

Baishing suggested building in standards-related flexibilities into
the World Trade Organization Trade-Related Aspects of Intellectual
Property Rights (TRIPS) Agreement, similar to those given for public
health, as interoperability is an issue of public interest.

Love named TRIPS Articles 31(k) =96 which frees member states from the
need to get authorisation from a rights holder who has engaged in anti-
competitive practices =96 and 44.2 =96 which covers injunctions =96 as
possible places where such flexibilities already exist.

The WIPO document on patents and standards, said Baisheng, is a =93good
description, with no conclusions, no solutions.=94 Member states must
provide those.

Kaitlin Mara may be reached at kmara@ip-watch.ch.

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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997