Moving the Goalposts: “Use” Patents and Standards
Wednesday, 2 April 2008
It’s become quite fashionable for large IT shops to give blanket Royalty-Free licenses for implementation of “core” technologies, such as XML, Web Services and Atom. I’ll refrain from linking to any of them, as the purpose of this post* is not to pick on any single one**.
Rather, it’s to call attention to a blind spot. IT folk see these licenses, nod their heads and relief, and assume that all is well; they can use this technology in their projects without fear of at least a handful of big, bad companies coming to get them.
That’s not the case.
You see, most of these licenses are restricted to the implementation of this technology, not its use. This clears the people who actually write the code that implements the [XML, Web Services, Atom] parsers, processors and tools, but it doesn’t help the folks that use those things.
I should point out that this isn’t limited to these one-off “commitments”; the vaunted W3C Patent Policy says:
“Essential Claims” shall mean all claims in any patent or patent application in any jurisdiction in the world that would necessarily be infringed by implementation of the Recommendation.
In other words, people who implement XML parsers are free from worrying about any W3C Member for coming after them, while the people who use those parsers are out in the cold; if you’re using XML for healthcare, the same folks who make those commitments can have “XML in healthcare” patents and come after you.
In effect, the vendors are pooling together their IP and giving each other free cross-licenses on chosen technologies — calling a truce, if you like — but not including their users. A rapacious vendor could hoard IP relating to the use of a technology, push it as a standard to get wide adoption, and then cherry-pick cashed-up users to get the most revenue from patent enforcement.
Is it on purpose? In most cases I doubt it, but that’s the outcome, and it’s important for people to understand it. Can we do much about it? Probably not, unless somebody gets really generous and starts a patent pool. Sorry to end on a down note, but patents are involved, after all…
* Since it’s a sensitive subject, I should point out that I’m not wearing any of my various hats when writing this post; it just reflects my personal thoughts, and I am not a lawyer, or shudder a patent lawyer, so take it with a huge grain of salt.
** No, the timing is not purposeful; recent events merely reminded me that I wanted to post this.