 |
|
CONTENT SYNDICATION 
|
|
CONTENT SYNDICATION
|
|
BLOGROLL OPML:
|
|
|
|
Search in IPJUR.COM
|
BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Wednesday, November 10, 2004Mr. Bruce Perens on the Problem of Software Patents in Standards.Mr. Bruce Perens has published an article on The Problem of Software Patents in Standards:"Patents, originally created to stimulate innovation, may now be having the opposite effect, at least in the software industry. Plagued by an exponential growth in software patents, many of which are not valid, software vendors and developers must navigate a potential minefield to avoid patent infringement and future lawsuits. Coupled with strategies to exploit this confusion over patents, especially in standards setting organizations, it appears that software advancement will become stifled unless legal action is taken to resolve the situation. This article examines the current situation facing software developers and users, the methods employed by standards setting organizations to address these problems, and recommends strategies for resolving the problem caused by software patents."The article is indeed interesting to read although Mr. Perens does not hesitate to follow the crowd when railing against the patent system. However, the point is that Mr. Perens' criticism on some aspects of potential detrimental interactions between patents on computer-implemented inventions, on the one hand, and open standards, on the other hand, should be taklen serious and used an an incentive for an improvement of the current patent practice not only in the United States. A first point is that any problems concerning quality control measured within the various Patent Offices should be mastered by organisatorical reforms as soon as possible. And, a second point is that there is no reason why a discussion on a modification of the patent law should be avoided if such discussion aims to improve the compatibility of the patent system with necessary open standards by introducing specific exemptions and regulations to support standardisation bodies. The particular problems in conjunction with the creation and maintenance of open standards as discussed by Mr. Perens do, however, not require any modifications of the prerequisites for the patentability of computer-implemented inventions as fiercely debated e.g. in the context of the EU Draft Directive. Those problems can be solved in a more precise manner and with less undesirable side effects by modifying the legal effects of granted effects, not by tinkering with patentability criteria. In economics, vendor lock-in, also known as proprietary lock-in, or more simply, lock-in, is a situation in which a customer is dependent on a vendor for products and services and cannot move to another vendor without substantial costs, real and/or perceived. By the creation of these costs to the customer, lock-in favours the company (vendor) at the expense of the consumer. Lock in costs create a barrier to entry in a market. The concept of vendor lock-in is often used in the computer industry to describe the effects of a lack of compatibility between different systems. Lock-in effects may harm competition in huge market segments. RF or at least RAND licensed open standards may be seen as a solution to limit vendor lock-in effects. In some sense, popular F/OSS solutions like the Linux operating system may represent some kind of open standard by themselves. In a time where most computers are interconnected by some kind of network, interoperability is a key issue. Hence, open standards are most important. However, it is difficult to create RF or RAND licensed open standards if it is not known whether or not there is any third party holding at least one patent, the protected technology of which being necessary to implement the standard. Perhaps it will be necessary to think on other tracks than traditionally done. One might, for example, imagine the patent law to be amended by introducing a rule allowing major standardising institutions like DIN, ISO or W3C to publish a full technical disclosure for a proposed interoperability standard in some kind of an Official Gazette issued by some competent Authority on EU level. Then, each and every patent holder has an opportunity to oppose against this proposal within a certain term of, say, nine months or so. If a patent holder opposes, the standardising organisation as well as the public will be notified accordingly. An opposition might then be absolute (i.e. the patent holder refuses to license the patent at all) or relative (i.e. the patent holder is willing to provide a RAND license only). If a patent holder does not oppose in due time, the grant of a RF license would be stipulated by law. Such procedure would not unduly harm the interests of patent holders (they merely have to closely watch the Official Gazette and make up their mind) because of they will not be forced to grant any license. On the other side, if no opposition has been filed, the standards bodies can be sure that the proposed standard is in fact patent free. If oppositions are raised, they can re-think on whether or not drop that proposal. However, as in many other cases, the problems are in the gory details. For example, it will not be easy to deal with unexamined or even unpublished patent applications. Furthermore, the proposed procedure might not scale very well. If thousands or even tens of thousands of proposals would be published per year, the burden for the patent owners would be clearly inacceptable. On the other hand, patent owners must be hindered to simply block any standard without even looking at the details by simply filing objections on the basis of each and every patent available in their patent portfolio. If the total number of published proposals per year is sufficiently low this might be achieved by requiring a modest Official fee or by imposing a duty to substantiate the Opposition.
| ||||||||||||||||
