Material on Standards and IP

The licensing of IP for standards has four aspects: what the (case and statute) law says, what the standards bodies require, what the IP owner grants, and how the developer (adopter) is acting. Standards themselves never seem to have useful information about patent IP, and even their copyright boilerplate needs to be checked against licenses given by the copyright holder: W3C and ISO don't like you copying their standards, Ecma does, for example.



For an introduction to the legal aspects, see ConsortiumInfo.org, which is by a lawyer for OASIS. The Dell case is pertinent.

For an introduction to the standards body aspects, see Standards Law, which is by a lawyer for Microsoft. It has a reference to the ISO requirements. For the boutique standards bodies: OASIS, Ecma, W3C

For examples of the kind of grants that companies make see
Microsoft Open Specification Promise, IBM Open Source Portal, Sun's OpenDocument Patent Statement. Adobe has not put their equivalent online if it has been finalized, as far as I can see. (Microsoft also has a "Covenant not to sue", however this seems to have disappear from its website in a rearrangement of links. They need to get it put back online.)

So what does the user have to do with it? Some licenses provide particular conditions relating to private or not-for-sale use: the GNU licenses for example. Other times licenses are revoked if you try to sue the IP owner: these defensive patents are bargaining chips in legal wrangling.

One key term to understand is RAND: Reasonable and Non-Discriminatory Licensing. It is pretty much the bottom line for standards organizations. However, RAND licenses are controversial, and in the views of many of us, something that should be avoided by modern standards bodies in the age of Open Source and Free Software which, like standards, have strong counter-monopolistic and even communitarian aspects.

Another concept to understand is the Open Standard. Not all standards from standards organizations are Open Standards under anyone's definition, especially older standards and standards which involve semi-scientific research and development (compression patents, for example) where the IP holder would only license a vital technology under RAND or not at all. (There is some creep on what an Open Standard is, to conflate it with Open Source or free implementations.)

And it should go without saying that someone cannot grant a license to IP they do not themselves hold. So all covenants and licenses only extend as far as the material in question. This is important for extensible formats such as ODF and Open XML, because the ZIP container allows any kind of media or binary file.

See the IBM material for a definition of Necessary Claims and Required Portions.