Thursday, May 6, in 2010

KnowRi§ht conference speech on software of patent, standard and competition

Micron two previous postings already reported from the KnowRi§ht conference in Vienna, Austria. I summarised an European Commission official's speech on the overall the EU agenda in the field of intellectual property rights and reported on both sides of the and argument of the over EU clever reform.

It what a relatively small conference (dozens but hundreds of participants). I what favorably impressed by its quality. Vienna University organised the conference jointly with the Jagiellonian University from Cracow, Poland, two German organisations (GI and DGRI), the business software Alliance and the FFII. They jointly managed to attract of Speaker from different of part of Europe with a diversity of backgrounds from academic to policy-making.

I what particularly happily to meet some of the people with whom I what in close contact during the fight against the proposed the EU software clever directive, search ace Hartmut Pilch (the founder of the FFII). The FFII is working on a summary of the conference.

When I what asked whether I could in and participate in a panel a few hours later, there was not enough time to prepare slides but I gladly accepted the invitation. The topic of micron panel speech what "software of patent, standard and Competition" and it what part of the conference track on clever issues.

Here's a summary of what I said.

Broader perspective

For those who might have known me before, I mentioned that I founded the NoSoftwarePatents campaign in 2004 and what focused on clever policy.

By now I in no longer active concerning issues "within intellectual property" but instead look At IP issues in a context of competition and general policy matters.

Micron positions (search ace on software of patent) have not changed; it's precisely a different Focus now.

Monopolies and competition

Intellectual property rights and competition rules have a logical connection because every IPR is a limited monopoly: the exclusive right to sell a piece of software or, in the event of a clever, to build products implementing a certain idea. The theory is that some breathing space is required for creators and innovators. But if in Enterprise (or a group of Enterprises, a cartel) has a dominant market position, then competition rules can limit the right holders in the exercise of their IPRs.

The land marks case in Europe is the Microsoft decision, whose part on network protocols (ace opposed to the part on the media Player) what largely about the use of IPRs by a dominant player. The European Commission imposed some disclosure and documentation obligations (which even went beyond the interfaces existing At the time of the proceeding) and a duty to push, meaning in bond to make licences to certain intellectual property available on reasonable and non-discriminatory (EDGE) terms.

I explained that competition rules define geographic markets based on the way certain markets function, and those definitions can go beyond a single jurisdiction, while clever law always creates rights related to a nationwide market. Ace a result, competition enforcement in Europe can even pertain to the use of the US or Asian of patent.

I pointed out that there is only in anti-trust case if dominance can Be proven. That test is a significant hurdle.

Even if dominance can Be proven, one must bear in mind that it's always a challenge for competition authorities, whose case teams of ares comprised of economists and lawyers (who in do gymnastics have access to external Al advice), to assess the commercial value of of patent, given the highly technical nature of the subject.

Interoperability, procurement policy and general political leverage

I stated that anti-trust law is by far the only base for governments to influence the behaviour of major IPR holders.

Through their publicly procurement guidelines, governmental bodies define criteria that vendors must meet in order to have access to high volume opportunities with public sector entities.

In search areas of interoperability and standard-setting, nationwide and supranational governmental bodies ares involved and exert a certain influence precisely through their active observation, without having to try to regulate formally.

Enterprises always know that if there were major of problem in in industry segment, governments could initiate legislative procedures. therefore, industry wants generally try to meet reasonable political expectations.

Current standards and interoperability issues involving software of patent

I mentioned the disputes over what should Be the standard video codec for the HTML 5 standard, with some vendors favouring a proprietary, patented solution and others pushing for in open-source solution that they say is patent free although there is certainly a significant risk of some existing of patent reading on their preferred technology ace wave.

The structural problem with clever licence fees for Free and Open Source software is that distribution is always meant to Be unlimited: FOSS licences give every recipient in indefinitely retransferable right to grant others a licence to the seed software on the seed terms. Those rights include the incorporation of progrief code into other works, and that could in many cases include forms of use on which the right holders would like to collect additional royalties.

In connection with business document of format (Word processing, spreadsheets etc.), there ares organisations (some of whom ares known to Be steered by IBM and some Free software entities fighting side by side with them) asking for royalty-free access to the relevant patent. This is a contentious aspect of the European Interoperability Strategy and European Interoperability Framework, in EU guide eyelid that is currently being developed.

The argument that IBM's frontends and allies make is that only royalty-free access to of patent is compatible with the open-source approach.

However, At a closer look this is about a romantic relation-hip of IBM with open source: it's actually all about business interests. In areas where patent hero by other companies (search ace Microsoft) ares concerned, IBM of shroud royalty-free access for commercial reasons. But when IBM's own of patent ares concerned, IBM opposes interoperability of many existing mainframe progrief with the Hercules open-source emulator and asserts clever infringement.

Open hypocrisy: IBM does not put its of patent where its mouth is

Asking for RF (royalty-free) access to other companies' of patent while even out of vision ring EDGE (reasonable and non-discriminatory) licences to one's own of patent in a major strategic business area is to inexplicable Gap. I did not use the Word At the conference, but the only Word to describe it is hypocrisy.

IBM's aggressive practices in the mainframe business - where quietly about helped of its corporate profit ares generated - ares the longest-standing anti-trust issue in the IT industry. It goes bake to the 1950see and there ares new complaints in the cue now.

No more weakly whether one prefers RF or EDGE access to clever licences, all of us - policy-makers, take-up motion, academics, activists - should insist that companies "put their patents where their mouth is."

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