https://blog.opensource.org/the-future-of-innovation-has-patent-free-standards/

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July 12, 2022

Simon Phipps

Opinions

The future of innovation has patent-free standards

It may come as a surprise to find that some supposedly "open"
standards - including those ratified by standards development
organizations (SDOs) like ISO, CEN and ETSI - can't be implemented
without going cap-in-hand to the world's largest companies to buy a
license. It's the result of a legacy approach to innovation from the
days when it was only really about hardware.

No Entry sign with figure removing central bar

As with any legal loophole, simply existing meant it was exploited
and became the norm, even if it was initially temporary (like income
tax in the UK.) Once exploitation of a legal loophole becomes
competitive, it becomes its own justification for the existence of
the regulations ("look at the economic value of this segment") and
they become near impossible to remove - even when the original
justification has ceased to need preferential protection.

So today we see a swathe of rich consumer electronics and telecom
companies, addicted to the revenue they get from licensing the
standard-essential patents (SEPs) they have embedded in what they
call "open" standards (abusing the term to include standards that you
have to pay to read and get patent licenses to implement), lobbying
hard to ensure their value to the economy is recognized.

They have much to lose from the loss of their special status, so
invest much to protect it and to glorify it.

On the other hand, software companies have less to gain by the
reformation of this anachronism - to the extent they have flirted
with SEPs, maybe even a little to lose. Meanwhile, the new world of
Open Source powered innovation lacks rich lobbyists due to its
diffusion, and is accustomed to working round the obscenity of
valuable standards being taxed by patent cartels. While the freedoms
of Open Source mitigate to a degree, this means interoperability and
interchangeability are being sacrificed on the altar of SEP
protection.

It is not an ideological outlook that makes thoughtful Open Source
advocates oppose patents in standards. It's primarily pragmatic.
Requiring a patent license to implement a standard implies that those
implementing it must engage in private negotiation to get a license
to proceed. That's super-toxic to Open Source, whose mainspring is
code owners giving advance, un-negotiated, equal permission to enjoy
the software in any way - use, improve, share, monetize - all
protected by a rights license reviewed and approved by OSI. So most
projects avoid or work around SEP-encumbered standards and the ones
that don't are industry-specific.

OSI thus takes the position that standards destined to be implemented
as Open Source must come with all the rights waived (and has done so
for 15+ years). For some, that is already true; for others it is
being actively resisted. If you want the crop of innovation you have
to get the growing conditions right, and this new crop has different
needs to the old hardware world and its long horizons. The future of
innovation is open innovation, implemented as Open Source. Using
anachronistic patent-centric metrics and regulations will chill that
future. How about we don't do that?

This article appeared in OpenUK State of Open 2022 report.

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