Reasonable and Nondiscriminatory

Most standards organizations demand that their members agree to license any of their patent claims necessary to practice their standards on "reasonable and nondiscriminatory terms." Here is a typical license grant from one company, Cisco, to one standards organization, the Internet Engineering Task Force:

Cisco has a pending patent application relating to the subject matter of draft-ietf-mobileip-nat-traversal-06.txt, "Mobile IP NAT/NAPT Traversal using UDP Tunneling". If a standard relating to this subject matter is adopted by IETF and any claims of any issued Cisco patents are necessary for practicing this standard, any party will be able to obtain a license from Cisco to use any such patent claims under reasonable, nondiscriminatory terms, with reciprocity, to implement and fully comply with the standard. (From www.ietf.org.)

The key words in this letter are reasonable and nondiscriminatory . You will see these words in most patent grants to most standards organizations worldwide. This is just one example; Cisco and the IETF are not unique. I'm not picking on them by reprinting this letter.

The word reasonable is impossible to define precisely. It always depends on the facts of the specific case. So, for example, there is no single reasonable price for a car or a house, no agreement on what constitutes reasonable warranty terms, and perhaps for some companies there is no reasonable way at all to accept a reciprocity provision. What is the reasonable jurisdiction and venue for litigation against an open source programmer who lives in Africa or Europe?

The word nondiscriminatory is also ambiguous. Does it mean that both rich and poor will not be discriminated against? (It is difficult to set any price other than very near zero that doesn't discriminate against at least some of the poor.) Or does the promise not to discriminate merely extend to the forms of discrimination already outlawed by law, such as age, race, and sex? As some have complained about the GPL and other reciprocal open source licenses, aren't all reciprocity provisions discriminatory against those who won't or can't accept a reciprocity obligation?

In practice, the reasonable and nondiscriminatory promises simply mean that everyone will pay the same price, and be subject to the same terms and conditions, for the same patent license rights ”even if those terms and conditions are onerous and incompatible with free software. That is not open source, any more than saying that Microsoft Windows is open source because everyone pays the same price and agrees to the same End User License Agreement. As I have noted throughout this book, the devil is in the detailed license terms and conditions that must be agreed to.

Another ambiguous phrase in the Cisco letter is with reciprocity . The scope of the reciprocal license expected from implementers or users of the standard is unknown until the precise license terms are revealed by Cisco. Is reciprocity in this case benign ?

An open source licensor can take little comfort when a company issues vague promises of reasonable and nondiscriminatory licenses for its patents. We need to be certain that the patent licenses are actually compatible with open source.