FOSS Open Standards/Patents in Standards

A patent is a set of exclusive rights given by a government to a patent applicant in which the patent holder is granted the right to prevent others from making, using, selling, offering to sell or importing the invention for a specific period of time. Patents are usually granted for inventions that are considered to be non-trivial, new and novel. Patent grants are territorial in nature in that patents applied for and granted in one country are not automatically recognized in another country. Examples of patents are:

1. Wankel rotary engine
2. Hume concrete pipes
3. Design of the Coca-Cola bottle

Software Patents

Traditionally, patents are given mainly to physical inventions but in recent times many countries have begun to grant patents for non-physical items such as business methods and computer programs (software). Software has become patentable in countries like the USA and Japan. The issues on the patentability of software and the way patent offices process software patent applications are very controversial.,,, In countries where software patents are recognized, patents may be granted to functional aspects of software that are considered to be innovative and non-obvious. The expressive elements of code are not patentable. Instead, they are covered by copyright to which almost all the countries in the world subscribe to. While many countries still do not recognize software patents, most are re-examining this issue and trying to decide whether they should change their positions. The inclusion of software patents in IT-related specifications and standards has attracted a great deal of discussion.

Policies on Patents

In the case of technical standards, it is not uncommon for patented items to be proposed to be included as part of the specifications. The standards development body has to decide on whether it should use such an item or look for an alternative. In the past, the development of standards related to software and IT has proceeded using mainly a 'reasonable and non-discriminatory (RAND)' terms policy whenever patents are included in a standard. Under RAND, the patent holder must be willing to negotiate rights to use the essential patent on reasonable and non-discriminatory terms. The intent of RAND was to prevent patent issues from hindering the adoption of a standard and to ensure that the cost of any necessary licenses needed, arising from the patent, are affordable. This has proved adequate in the past but, in recent times, the increasing proliferation of patents granted to software-based innovations (including software patents) has led standards developing and setting bodies all over the world to clearly state their patent policies to ensure that they are adequate and will continue to support the development of highly successful and widely used standards as they have in the past. Since, in general, a standard is targeted for use by all in the world, it is vital that the terms of usage of any patent that is included in the standard are clearly specified.

Standards have been produced that include patented technologies and all the main standards bodies have policies with regard to the treatment of patents in the documents that they produce.

ISO

ISO has published directives on the issue of patents in its standards development process., There is a strong recommendation to avoid references to patented items in ISO publications. Nevertheless, ISO recognizes that for technical reasons, sometimes this may not be possible and, in such exceptional situations, it does not object in principle to the inclusion of items covered by patent rights even if the terms of the standard are such that there are no alternative means of compliance. During the preparation of the ISO document, a basic text for the identification of patent rights is to be inserted into the draft documents in those cases where compliance with an ISO document may involve the use of a patent.

IETF

RFC 3979 is the main document dealing with the IETF's stand on patents. In general, IETF prefers technologies with no known patent claims or patents that offer royalty-free licensing. However, the IETF working groups have the discretion to adopt technology with a commitment of RAND terms, or even with no licensing commitment, if they feel that the technology is superior enough to alternatives with no such patents or licensing encumbrances.

In order for the working group and the rest of the IETF to have the information needed to make an informed decision about the use of a particular technology, a person contributing to the working group's discussions must disclose the existence of any patent claims that the individual is reasonably and personally aware of and that he (or his employer) owns or controls.

W3C

W3C has a very clear policy with regard to patent usage in its Recommendations. It seeks to issue Recommendations that can be implemented on a Royalty-Free (RF) basis. This has arisen from the experience it had with the WWW.

Many early standards (Recommendations) from W3C paid scant attention to patents. Later, as the Web became more commercial and software and business process patents increased, patent infringement issues surfaced as several patent holders, including some who had participated in the development of the standards themselves, sought license payments. As a result, W3C decided to have a clear patent policy governing the Recommendations that it develops.

The key position of W3C with regard to patents that are deemed essential to a Recommendation (it calls them "essential claims") is that they have to be available for implementation in accordance with the W3C RF License requirements. An "essential claim" refers to a patent for which there is no known alternative and, therefore, it is essential to the implementation of a normative part of a Recommendation.

The policy generally requires that a participating organization in a W3C working group formally commits to the RF requirements for "essential claims" The participants are not required to disclose known patents as long as their participating organization commits to licensing those patents according to RF requirements. In the event that a working group participant holding a patent does not want the patent to come under RF requirements, there is some flexibility in the policy in that it allows the participant to exclude specific patent claims from the RF commitment, provided the working goup is informed within a well-defined time limit. In this manner, a participant can still participate while specifying that strategic technology be excluded from the RF process and the working group is made aware of a potential patent conflict. As far as possible, the working group will try to resolve this conflict. However, in the event that it cannot be resolved, the matter is referred to the Patent Advisory Group (PAG) task force which will attempt to resolve the conflict. Ultimately after exhausting all other options, if the PAG does indeed recommend that an alternative to the RF licensing requirements be used, it has to go through several levels of review and consensus before W3C accepts the alternative.

W3C policy requiring commitment to the RF requirements by default is a stricter policy as compared with the RAND policy of ISO and IETF.

OASIS

OASIS has a published policy which governs the treatment of patents that are considered as "essential claims" (patents that are deemed essential for the implementation of a normative part of an OASIS standard), in the production of specifications and other works by OASIS.

Unlike the W3C, OASIS does not have a single licensing agreement for "essential claims"; instead it uses three types: "Reasonable And Non-Discriminatory (RAND)", "Royalty-Free (RF) on RAND Terms" and "RF on Limited Terms".

RAND defines a basic set of minimal terms that a patent holder is obliged to offer (such as granting a license that is worldwide, non-exclusive, perpetual, reasonable, and non-discriminatory, etc.) and leaves all other non-specified terms to negotiations between the patent holder and the implementor seeking a license.

RF on RAND Terms is the same as RAND with the exception that no fees or royalties are to be charged.

RF on Limited Terms specifies the exact royalty-free licensing terms that may be included in a patent holder's license and that must be granted upon request without further negotiations.

Summary of Patent Policies of Standards Organizations

As can be seen from the discussion in the previous section, most standards bodies do allow the inclusion of patents in their standards although patent-free ones are preferred. Their patent policies all revolve around allowing a RAND policy, either with some form of royalty payment or royalty-free or a mixture of both. This practice is based on the view that RAND licensing appropriately balances the legitimate rights of patent owners, who contribute innovative technology to the standard, with the interests of implementors who wish to obtain access to essential patents on reasonable terms.

RAND Licensing Terms and FOSS Licenses

The possibility that patents under RAND terms can be included in standards has very important implications for software that is released under a FOSS license. FOSS licenses usually include terms that satisfy the following clauses of the Open Source Initiative's Open Source definition.

Free Redistribution

The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale.

Derived Works

The license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software.

Distribution of License

The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties.

Although all FOSS licenses share these characteristics, the actual requirements and obligations imposed can vary from license to license. For example, the BSD license requires only copyright attribution and license reproduction, and redistributions of the software may be made under any other license. However, the Mozilla Public License (MPL) impose moderate obligations in that they require that specific files containing MPL code be distributed in source-code form and under the terms of the MPL. GNU GPL requires that any work that includes GPL code, if distributed at all, be distributed under the terms of the GPL. It also clearly states that any patent must be licensed for everyone's free use or not licensed at all. FOSS licenses, then, do differ with regard to the nature and degree of rights and obligations described. Consequently, licenses like the BSD allow the usage of technology available under RAND terms but GPL does not allow any GPL-based public distribution to include any technology available under a RAND license that is not royalty-free. The licenses cited above are the most commonly used FOSS licenses with GPL by far being the most popular one. This has the implication that a large number of FOSS products may be incompatible with RAND licensing. In connection with this issue, the Free Software Foundation has stated that RAND licensing discriminates against free software as it is generally not possible for software to be freely modified and redistributed under RAND licensing terms.

Patent Offerings to the FOSS Community

To waylay the concerns of FOSS developers and users, and to reduce the fears of software patents infringement by FOSS developers, several commercial companies have recently offered all or part of their portfolio of software patents on a no cost basis to the FOSS community for use. IBM has announced that, for a start, it will allow royalty-free use of 500 of its software patents in any software that is released under an Open Source license (as recognized by the Open Source Initiative). Red Hat, a company well known for the development and commercial distribution of GNU/Linux, has offered unfettered use of its own software patents portfolio to Linux developers. Novell has said that it will use its existing patent portfolio to protect the Linux kernel and other Open Source programs included in Novell's offerings against potential third-party patent challenges. Sun Microsystems has released over 1,600 patents for use with software that is licensed under the Open Source Common Development and Distribution License (CDDL).

A Patent Commons Project has been started by the Open Source Development Labs (OSDL). This initiative is aimed at the creation of a central depository where software patents and patent pledges can be housed for the benefit of the open source development community and industry. Companies that have contributed and pledged patents to this project include Computer Associates, IBM, Nokia, Novell, Red Hat and Sun Microsystems.

There is much controversy and debate over patents in software development and RAND in standardization (see Annexure: Comments on RAND, as Seen from Both Sides).