Stop patent mischief by curbing patent enforcement

To fix the patent problem, limit crackdowns to only the software that implements standards worth the industry's protection

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Patents and standards
I've been considering this approach ever since the Directive was defeated, and I believe I have a proposal that will work for everyone. Let's assume that patents will not be abolished, that patents continue to be issued for software, and that some industries choose to set standards that incorporate patents upon which royalties are due.

Can we adjust the system so that these patents cannot be used to harm the software industry, which to date hasn't needed patents to drive innovation and within which patents create a significant and often expensive problem? Can we do so in a way that does not harm the established practices of the mobile telephony industry, where patent-bearing standards are the norm? I believe we can.

All standards processes today have a policy of requiring participants to declare they have patents relying on the standard. Some standards bodies use this information to impose FRAND royalty terms on participants; others use it to avoid the technologies that are subject to patents. FRAND terms are theoretically available to standards in most standards bodies, but approximately no software standards activities use them. In this context, FRAND terms discriminate unfairly against the majority of market participants, who've come to the standards activity and the marketplace in the expectation of recovering their costs through profitable competition -- not through rent-seeking patent taxation.

Proposal: Standards only
Consequently, all patents that drive innovation in a useful way are disclosed in the process of standardization. I propose that legislation be introduced to make software patents only enforceable against implementations of standards where the patent was declared in the standards process. All other software contexts should become off-limits for patent enforcement.

This approach would have numerous benefits. It would strongly encourage participation in standards processes by patent holders. It would eliminate the ability of entities existing only to exercise patents to blackmail unsuspecting innovators. It would reduce the cost of patent litigation when it did arise, due to the close scrutiny already paid to the technology in the standards process. It could even strengthen the revenues of those industries where patents in standards are the norm.

This is obviously a solution that needs much thought and negotiation among the parties involved. But the software industry can't accept the ridiculous onslaught of anti-competitive use of software patents and rent-seeking behavior by patent trolls. Something must be done, and I believe this approach protects sufficient existing interests to be a viable path.

Sure, I'd love to get rid of software patents altogether. But limiting their use to the standards where all participants accept them is the next best thing.

This article, "Stop patent mischief by curbing patent enforcement," was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.

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