Patents on Open Standards

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Patents on Open Standards

What happens when someone owns patents that are necessary to implement the specification for an open standard? You will recall that the owner of a patent can prevent you from making, using, or selling his or her patented invention regardless of how you learned to do it, even if you invented it yourself subsequently.

If someone owns a patent claim necessary to practice an open standard, you will need a license from the patent owner to practice that standard in your own software. Your freedom to practice the standard in your software is subject to the license terms from the patent owner.

Standards organizations recognize this. That is why they have focused in recent years on designing patent policies that are compatible with open source. The key to open standards is a patent policy that encourages the widespread adoption of the standard in all kinds of software ”including open source software.

Patent claims necessary to practice an industry standard can suddenly appear. The story is often written about the eccentric scientist who, while puttering in his garage, secretly invents and perhaps tries to delay the publication of an essential patent to valuable technology. There is nothing that a standards organization, or anyone else, can do to prevent such surprise patents that are published by the Patent Office after a standard is promulgated.

But far more typically, important patents are owned by the same companies that participate in the standards organizations. Who, after all, is more likely to want to file patents in a particular industry technology than the companies that have special expertise in that field? Those companies have the talent and resources to create a wealth of patents surrounding the field of the standards.

Standards organizations need ways to protect their members from each others' private patents. The latest technique, the development of agreed patent policies that limit the options of their members to enforce private patents, is one important solution to the patent problem for industry standards. The patent policy of the W3C is the leader in this new area of open standards; the W3C Patent License is described in the last section of this chapter.

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Open Source Licensing. Software Freedom and Intellectual Property Law
Open Source Licensing: Software Freedom and Intellectual Property Law
ISBN: 0131487876
EAN: 2147483647
Year: 2004
Pages: 166

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