The European Commission, in its Communication on Setting out the EU approach to Standard Essential Patents, has committed to working with stakeholders, open source communities and standards development organisations.
A survey have been launched, involving relevant communities and aiming at providing inputs to the study of the European Commission on the “Interaction between Open Source Software and FRAND licensing in Standardisation“.
The study was important to provide hard facts evidence for the public policy measures in standardisation following the principles of the Communication on the ICT standardisation priorities for the Digital Single Market (2016) but also to contribute to the goals of the Communication on Setting out the EU approach to Standard Essential Patents (2017).
The objective of this study was to identify possible commonalities and barriers for interaction between standardisation and open source processes.
In particular, the objective was to clarify the role of open source in the context of standard setting, in particular its interplay with FRAND (Fair, Reasonable And Non-discriminatory) licensing.
Amongst other research items, the study includes a set of practical case studies and a stakeholder workshop.
Some of the questions asked during the survey looks to me particularly relevant for ETSI in the context of a reflection around the IPR scheme to use and how to profit from the evident benefits of Open Source Software in standardisation activities.
In particular:
USE OF INTELLECTUAL PROPERTY RIGHT
Did your organisation apply for, register or claim the following intellectual property rights (IPRs) between 2015 and 2017?
| | NO | YES |
|---|---|---|
| Global application of patent families | ||
| Global registrations of trademarks | ||
| Claiming of copyright (e.g. by proof of the creation date or the © symbol or open | ||
| source licenses) | ||
| Global registrations of industrial designs | ||
| Global registrations of domain names | ||
| Other forms of IPRs, please specify |
Did your organisation license (in/out, sell, purchase, own) the following types of patent families between 2015 and2017?
| | NO | YES |
|---|---|---|
| Own patent families licensed out or sold to third parties | ||
| Patent families of third parties licensed in /bought (excl. standard software) | ||
| Claiming of copyright (e.g. by proof of the creation date or the © symbol or open source licenses) | ||
| Patent families that refer to standards or open source | ||
| Patent families declared to SDOs as potentially essential | ||
| Revenue-generating standards-essential patent families | ||
| Patent families in your portfolio implemented in open source software projects and products | ||
| Other forms of licensing (e.g.cross licensing), please specify |
INTERACTION BETWEEN OSS AND STANDARDISATION
Do conflicts occur between the following copyright licenses and licensing models in standardisation (in particular Fair Reasonable And Non-Discriminatory conditions)?
| | NO | YES |
|---|---|---|
| MIT License | ||
| GNU General Public License (GPL 2.0) | ||
| GNU General Public License (GNU) 3.0 | ||
| Apache License 2.0 | ||
| Open Air Interface (OAI) Software Alliance License Model | ||
| ISC License | ||
| BSD License 2.0 (3-clause, New or Revised) License | ||
| Artistic License (Perl) | ||
| GNU Lesser General Public License (LGPL) 2.1 | ||
| GNU Lesser General Public License (LGPL) 3.0 | ||
| Eclipse Public License (EPL) | ||
| Microsoft Public License | ||
| Simplified BSD License (BSD) | ||
| Other licenses, please specify |
If you have experienced conflicts between the chosen OSS and the licensing models in standardisation, how have these been solved?
| | Never | Rarely | Sometimes | Often | Always |
|---|---|---|---|---|---|
| Negotiation to find a solution | |||||
| In case of no solution, withdrawal from OSS | |||||
| In case of no solution, withdrawal from standardisation | |||||
| Strict separation between OSS and FRAND licensing | |||||
| More flexible IPR models in SDOs (e.g. allowing case by case IPR schemes) | |||||
| More flexible definition of OSS | |||||
| Use of copyright-only OSS licenses explicitly excluding patent license rights, which have to be negotiated separately | |||||
| Litigation at court | |||||
| Alternative dispute resolution | |||||
| Other solutions, please specify |
How do you assess the effectiveness of the following approaches of collaboration between standardisation and OSS?
| | Very low | Low | Medium | High | Very high |
|---|---|---|---|---|---|
| New processes to integrate OSS in standardisation | |||||
| New governance and conflict solutions models | |||||
| SDOs have to be more flexible in their patent policy | |||||
| SDOs have to change patent policy to royalty free | |||||
| More flexible definitions of OSS | |||||
| OSS licenses should include FRAND-based patent grants | |||||
| Use of copyright-only OSS licenses explicitly excluding patent license rights | |||||
| Strict separation of SDOs and OSS | |||||
| Direct combination of SDOs and OSS | |||||
| Other approaches of collaboration, please specify |
These questions could guide our reflection and help ETSI to define IPR and license schemes able to cope with everyone’s needs and concerns.
The study will be finalized in 2019 and the final report will be published by the Joint Research Centre of the European Commission.
I look forward to read this report and (hopefuly) use it as a major input for our internal discussions in ETSI 😉
