[A2k] FSFE statement to WIPO SCP/13 on patents and standards

[Georg C. F. Greve]

--
FYI.

[ http://blogs.fsfe.org/greve/?p=277 ]

                            STATEMENT BY THE

                 FREE SOFTWARE FOUNDATION EUROPE (FSFE)

                       TO THE 13th SESSION OF THE

             STANDING COMMITTEE ON THE LAW OF PATENTS (SCP)

                       (Geneva, 23-27 March 2009)

Mr Chairman,

We consider it a fortunate coincidence that this SCP discusses the issue
of standardisation and patents today, on Document Freedom Day, the
global day for document liberation and Open Standards during which
hundreds of groups around the world highlight the role and impact of
Open Standards for interoperability, competition, innovation and
political sovereignty. Please allow me to also clarify that our comments
on the report arise from our background in Information Technologies, and
should be taken in that context.

Document SCP/13/2 provides a good starting point and correctly
identifies the central role of standards in enabling economies of scale
and competition on a level playing field. This could be supplemented
with a perspective on innovation facilitated through standards by
providing a broad basis for future innovation ideally available to all
innovators. All of these benefits depend upon wide public access of
standards which the British Standards Institution (BSI) defines as "an
agreed, repeatable way of doing something. It is a published document
that contains a technical specification or other precise criteria
designed to be used consistently as a rule, guideline, or
definition. [...] Any standard is a collective work. Committees of
manufacturers, users, research organizations, government departments and
consumers work together to draw up standards that evolve to meet the
demands of society and technology. [...]"

Standards always imply wide public access, an openness of the standard
in both setting of the standard as well as access to the standard. It is
therefore important to realise that an Open Standard would necessarily
have to meet higher standards of openness than those provided by article
41 of document SCP/13/2. It is furthermore important to add that "de
facto standards" are typically not standards, but vendor-specific
proprietary formats that were, as the secretariat correctly pointed out
in the introduction to this discussion, "strong enough to impose
themselves on the market." It is for this imposition on the market that
"de facto standards" are commonly used to describe monopolistic
situations and corresponding absence of competition, which conflict with
the basic purpose and function of standards.

It was during the referenced November 2008 workshop by the European
Commission that Mr Karsten Meinhold, chairman of the ETSI IPR Special
Committee highlighted that "IPRs and Standards serve different purposes:
IPRs are destined for private exclusive use, Standards are intended for
public, collective use". While both exclusive rights and standards are
regulations motivated by the public interest, upholding one necessarily
deprives the other of its function. This fundamental conflict is the
basis for the common practice of participants in standardisation to
assign copyright to standardisation bodies to facilitate broad usage of
resulting standards.

There is no such common practice in standardisation with regards to
patents, leading to a variety of attempted remedies, some of which are
described in the report. It would be beneficial for the report to also
add approaches such as public patent grants for standards, like the
Adobe Public Patent License on the PDF standard, or the Sun OpenDocument
Patent Statement. The grant by Adobe in particular is of interest for
its retaliation clause against legal usage of patents against wide
adoption of the standard.

The report could furthermore be expanded with an assessment on the
effectiveness of the various attempted remedies, most of which in our
experience fail to provide a level playing field for competition.

As the necessity for approaches such as ART+P, advocated for instance by
Nokia, demonstrates, accumulated reasonable royalties can easily become
exorbitant. Or, to quote Ms Susy Struble of Sun Microsystems from her
presentation at the United Nations Internet Governance Forum (IGF) in
Athens: "One person's RAND is another person's bankruptcy."

The lack of reliability of assurances to license upon request, such as
(F)RAND, and the lack of safety from third party patent claims after a
standard has been published and become the basis of the market, are some
of the reasons for the current crisis in IT standardisation, which is
discussed also with contributions by various large U.S. Corporations,
such as IBM, Google, Oracle, Sun Microsystems and Red Hat. For further
reference we recommend the work of the Open Forum Europe (OFE) industry
association and its Special Interest Group on Standardisation.

Other issues are raised by the system inherent bias against Small and
Medium Enterprises (SME), which constitute the overwhelming majority in
many economies, including the European Union and most developing nations
as well as countries in transition. Current practice of licensing
conditions furthermore excludes whole sectors of the market from
implementation of some standards. The most severe example for this
practice is the exclusion of innovation, products and companies based on
the Free Software model, also known as Open Source.

In November 2008 Gartner projected that all companies will be using
software based on this model by November this year.  Exclusion of an
entire and central sector of the IT industry seems both unreasonable and
discriminatory, and is arguably in violation of the Common Patent Policy
of ITU-T, ITU-R, ISO and IEC, which states the principle that "a patent
embodied fully or partly in a Recommendation | Deliverable must be
accessible to everybody without undue constraints."

FSFE believes that it would be most useful for the SCP to analyse the
various approaches on the grounds of their inclusiveness of the entire
IT industry and all innovators, and identify the minimum requirements
that are necessary to uphold standards as drivers of competition,
innovation and economies of scale.

--- Statement by Georg C.F. Greve, Free Software Foundation Europe, President


--
[ Content of type application/pdf deleted ]
--

--
Georg C. F. Greve                                 <greve@fsfeurope.org>
Free Software Foundation Europe	                 (http://fsfeurope.org)
President                                      +41 43 500 03 66 ext 400
http://fsfeurope.org/about/greve            http://blogs.fsfe.org/greve