[Random-bits] Patents and Standards: KEI at WIPO SCP June 24

[James Love]

http://www.keionline.org/index.php?option=com_content&task=view&id=186

This statement was read by Thiru Balasubramanian on June 24, 2008 at the
2nd day of the WIPO SCP.  It addresses the possible role of WIPO in
looking at the relationship between patents and standards. 

---------------KEI Statement on Patents and Standards----------
We note the WIPO “Report on the International Patent System” has
examined the relationship between patents and standards. We applaud the
WIPO Standing Committee on the Law of Patents for including the
important issue of “Standards and patents” on list of issues for
discussion at the SCP.

The WIPO report highlights that tensions can arise between patents and
standards with respect to the disclosure of patents “which become
apparent when the implementation of a standard calls for the use of
technology covered by one or more patents.”

As the International Bureau has noted, current competition and legal
remedies may not been enough to solve the inherent tensions that
routinely arise in the realm of patents and standards.

KEI notes that issues concerning standards are increasingly global
concerns, involving goods and services that move in international trade
across borders.

One issue that is very important and highlighted in the WIPO report
concerns the disclosure (and non-disclosure) of patents relevant to the
implementation of a proposed standard.

When goods move in international trade, the systems for such disclosure
cannot be based upon the laws of a single country, and there is a strong
rationale for global norm setting in this area.

Companies and patent owners who operate in good faith do not rely upon
patent ambushes.

The SCP needs to gather information and evidence regarding state
practice in terms of obligations to disclose patents on proposed
standards, and to invite innovative businesses to share their views on
the adequacy of the current systems of managing disclosures.

We note that many businesses believe that the current systems for
disclosure are inadequate, in part because they do not extend outside of
the membership of standard setting bodies, and the disclosures that are
made are often deliberately not helpful.

The SCP should also consider other measures beyond disclosure that may
be appropriate.

We note the proposed Treaty on Access to Knowledge includes several
sections relevant to standards and patents, and members may want to
consider these proposals.

Finally, we note that the issues of standards are increasingly important
for vast areas of the modern economy, including of course information,
computing and telecommunications technologies and services, as well many
other many other areas, such as certain energy and environmental
technologies, important elements of transportation technologies, to
mention a few.