[Ip-health] Re: [A2k] Digtial television makers ask FCC to create patent pool for DTV patents, in order to avoid excessive royalities

[Simon Phipps]

On Jan 8, 2009, at 08:18, Norbert Bollow wrote:

> James Love <james.love@keionline.org> wrote:
>
>> Thanks to Konstantinos for bringing this to my attention.  Digital
>> television manufacturers are asking the FCC to mandate the
>> establishment
>> of a patent pool for digital television with open licenses and
>> reasonable royalties.    The petition to the FCC focuses on the
>> problems
>> of excessive royalties charged by two patent owners, for patents that
>> are needed to comply with an FCC standard.
>>
>> KEI will consider supporting this petition.
>>
>> Jamie
>>
>>
>> http://www.techweb.com/article/showArticle?articleID=212700600
>
> A better solution to this problem that patents on standards give
> patent holders the power to demand excessive royalties is to
> change patent law by adding the following analogon to the fair-use
> exception of copyright law:
>
> "For patented techniques which are required by international
> (i.e. ISO, IEC or ITU) standards or national regulations,
> implementation in Free and Open Source Software and use of
> such FOSS implementations is always allowed without having
> to pay royalties."

I have been proposing a solution like this for some time as well.
However, there are two nuances I believe are needed:

* Some standards activity (e.g. 3GPP) has a long history of royalty-
bearing standards inherent in the standards process. While some of us
might regard this as ethically suspect, it's real and it needs
accommodating. Therefore I suggest modifying the proposal to say
"which are required by international (i.e. ISO, IEC or ITU) standards
or national regulations where the patents were not disclosed during
the standardisation process". This live-and-let-live compromise is
likely to avoid the attacks that would otherwise be inevitable from,
for example, the mobile telephony industry.

* Implementation in FOSS is too wide a category and encourages "gaming
the system". I doubt it will be possible to include this clause. Much
activity that is valuable to the FOSS communities is commercially-
motivated, and a clause like this allows a well-funded corporation to
neuter their competitors' patent portfolios with little risk. I
suggest a different, less imprecise way to frame this is to say
"implementation for bona fides interoperability purposes is always
allowed". This has precedent in the previous battles in Europe around
copyright, resonates more with lawmakers and is harder to attack.

Nonetheless, I would love to see a copy of your paper please. I
believe an approach defining the applicability and enforceability of
patents is far more likely to be embraced by legislators than the sort
of root-and-branch reform Bob Jolliffe mentions. That reform is
necessary without a doubt - we desperately need the social contract
behind patent and copyright laws to be based in a meshed society and
not in the old hub-and-spoke society that's passing.

I too would love to see it happen, but I can't imagine any legislator
choosing to take on the combined might of media, pharma, telco and
software to make it happen in any way that is actually good for the
commons. So targeting use of rights rather than granting of rights
seems to me the correct approach.

Regards

Simon Phipps