The European Commission has been persuaded by lobbyists to change its position on standards to permit the use of FRAND license terms for patents applicable to technologies within those standards. This is a massive mistake that will harm innovation by chilling open source community engagement.
Simon was surprised when he went to the Microsoft press release page looking for the news about Linux support for SQL Server and joining Eclipse. He found that the only press release related to Linux was about patent licensing. He’s written about it today on InfoWorld and expanded the thought on his blog.
I participated in a study asking about the fairness, reasonableness and non-discriminatory nature of FRAND licensing in the context of licensing of patents in standards. I was surprised to find people there asserting there was no conflict between FRAND licensing and open source software. Here’s a simple explanation why that’s wrong.
Since patent licensing is by definition bilateral, and since open source communities that aren’t run by a single vendor are by definition multi-lateral, any standard which includes patents that require licensing discriminates against true multi-participant open source implementation. By definition, patent licensing as a precondition of implementation of a standard cannot ever be non-discriminatory. Even zero-fee licensing is discriminatory as it still requires implementers to seek permission, the antithesis of open source.
The effects of the Alice v. CLS Bank Supreme Court case have been felt in the recent Federal Court of appeals, Digitech case. The court decided to not even check for infringements, as the initial image processing software was deemed not to be a significant improvement to the computer, but merely a computer implementing a non‑patent‑eligible technique.
On an entirely separate, but equally positive note, last week the UK government announced that from hence forth it will be using an open document format as its standard. To hear (or read) more detail and insight on both these stories, check out Simon’s recent podcast with Red Hat Cloud Evangelist Gordan Haff.
In a satire of OIN‘s stated aim “to promote the Linux system by using patents to create a collaborative ecosystem”, the FFII used the opportunity provided by April 1st’s traditional gag pulling to announce two new “initiatives”, labelled “Coin2Patent” and “Offensive Publications”. Directly playing on the names and concepts of two OIN programs “Peer-to-Patent” and “Defensive Publications”, the initiative descriptions closely mirror those of their OIN counterparts but with a hard satirical edge.
The actual Peer-to-Patent program describes itself as a “system that aims to improve the quality of issued patents” and Defensive Publications are called “powerful preemptive disclosure [which] prevents other parties from obtaining a patent on the product, device or method.” The FFII gag paints their alternative projects as crowd funding for patent trolls and “basically the patents themselves” respectively. Read Alexandra’s full write up in the ComputerWorldUK spot.
In InfoWorld today, Simon challenges the assertion some are making that Google’s sale of Motorola after such a short time is a sign of failure. Noting all the gains Google has made, both financial and strategic, he suggests actually the deal is both profitable and clever. Certainly it’s a deal for its time, focussing mainly on triaging the negative consequences of a patent system designed for an industrial age being misapplied to the meshed society. Read all about it.
In yet more intellectual property news, we heard yesterday that the US Supreme Court has agreed to consider a question arising from the Alice Corporation vs CLS Bank dispute over the patentability of software. The Federal Circuit court, which is known to have a bias towards patent holders, has referred the question to the Supreme court after an en banc hearing resulted in a divided opinion. The matter unresolved concerns agreeing on a foolproof test for whether a patent ought to be valid if it combines a computer and an unpatentable abstract method. Read more in Simon’s InfoWorld summary.