RE: patent licenses on OASIS standards

[Jeffrey Thompson]

"Lawrence Rosen" <[EMAIL PROTECTED]> wrote on 02/24/2005 09:26:31 PM:
> Sam Ruby asked:
> > Do we have a formal definition that we can employ for the term "open
> > standards"?
>
> Here's my try at a definition of "open standards" in the form of five Open
> Standards Principles. These were first proposed at the conference of the
> Open Standards Alliance in Phoenix last year. John Terpstra is organizing
> that OSA activity. I welcome your feedback on these principles.
>
>
> Open Standards Principles
>
> 1.   Everyone is free to copy and distribute the official
>    specification for an open standard under an open source
>    license.
>
> 2.   Everyone is free to make or use embodiments of an open
>    standard under unconditional licenses to patent claims
>    necessary to practice that standard.
>
> 3.   Everyone is free to distribute externally, sell, offer
>    for sale, have made or import embodiments of an open
>    standard under patent licenses that may be conditioned
>    only on reciprocal licenses to any of licensees’ patent
>    claims necessary to practice that standard.
>
> 4.   A patent license for an open standard may be terminated
>    as to any licensee who sues the licensor or any other
>    licensee for infringement of patent claims necessary to
>    practice that standard.
>
> 5.   All patent licenses necessary to practice an open standard
>    are worldwide, royalty-free, non-exclusive, perpetual and
>    sublicenseable.
>
>
> Lawrence Rosen
> Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
> 3001 King Ranch Road, Ukiah, CA 95482
> 707-485-1242  ●  fax: 707-485-1243
> Author of “Open Source Licensing: Software Freedom
>                and Intellectual Property Law” (Prentice Hall 2004)
>  
>

Larry,
      I wouldn't propose that we adopt a definition of open standards that excludes almost all existing standards, even those which everyone would agree that, in fact, are free for implementation by open source. How many existing standards bodies are publishing their standards under open source licenses?  None of the W3C standards developed under their new RF policy would seem to satisfy your definition.  Is that intentional?

      There are a number of other "draft" definitions floating around.  Bruce Perens' is interesting and is a good start, but is not the only definition.  The EU is working on a European Interoperability Framework for IT and are in the process of trying to define what "open standards" they are going to recommend that EU governments adopt.  Their definition is interesting as well:

"The following are the minimal characteristics that a specification and its attendant documents must have in order to be considered an open standard:

"1.  The standard is adopted and will be maintained by a not-for-profit organisation, and its ongoing development occurs on the basis of an open decision-making procedure available to all interested parties (consensus or majority decision etc.)
"2.  The standard has been published and the standard specification document is available either freely or at a nominal charge.  It must be permissible to all to copy, distribute and use it for no fee or at a nominal fee.
"3.  The intellectual property - i.e., patents possibly present - of (parts of) the standard is made irrevocably available on a royalty-free basis.
"4.  There are no constraints on the re-use of the standard."

There has been a lot of public comment on the EU proposal.

I think that if we are going to work on a definition, it needs to have a practical effect.  That is, it needs to distinguish between those standards that open source projects aren't able to implement (potentially because of royalties on necessary patent claims) and those standards that open source projects can implement.  Creating a definition that puts the majority of standards which can clearly be implemented by open source projects on the "wrong" side of the line doesn't provide anyone meaningful guidance.
Jeff

Staff Counsel, IBM Corporation  (914)766-1757  (tie)8-826  (fax) -8160
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