SOS Interop II Sophia Antipolis, September 20 and 21, 2005 IPRs and standards: some issues Richard Owens Director, Copyright E-Commerce Division Philippe Baechtold Head, Patent Law Section World Intellectual Property Organization (WIPO)

2 WIPOs main activities Develop- ment of IP laws and systems; norm- setting Services for the public Economic development

3 Copyright and standards (1) 1996 WIPO Treaties (WCT, WPPT) require remedies against circumvention of technical measures, protection of rights management information, i.e. DRM Interoperable DRM technologies are integral to growth of global marketplace for legitimate delivery of digital content Lack of interoperable DRM contributes to unauthorized use of digital copyright content, including piracy Standardization is the optimal means to achieve DRM interoperability Recent copyright legislation and policy supports DRM standardization –Recital 54 of Dir. 2001/29/EC (interoperability of … different systems should be encouraged)

4 Copyright and standards (2) Open source software (OSS) is collaboratively developed and licensed under copyright (50+ licenses, including GNU GPL) Open standards are technical specifications that meet criteria of openness in their creation, implementation and use, as defined by SSOs (e.g., under Resolution GSC-10/04) Open ICT standards can be implemented using OS, but … Open source and open standards are NOT the same thing Possible conflict between some OS licenses (notably re viral effect of GPL) and IPR policies of SSOs (RAND,FRAND), but market reality demonstrates a degree of co-existence Further study required on options available to OS developers to implement open standards consistent with both OS licenses and SSO IPR policies

5 Patents Essential tool for innovation Main conditions of patentability: novelty, inventive step, industrial applicability. Duty of disclosure. Optimal application = objective Limited term of protection (20 years from the filing date) Territorial right Exceptions and limitations Increased debate in recent past on potential conflict with standards (more patents; variety of technologies, particularly in ICT; questioning of role of patents; fear of abuses)

6 Patent and standards (1) Minimizing risks of conflict requires SSO to adopt patent policy. Some issues: –Obligation for participants in the standard- setting to disclose patents (and pending applications). Aim: know whether patent rights on future standards –If relevant patents, obligation to agree on licenses; conditions (RAND, FRAND, RF)? –Consider patent pools, where licenses are granted and revenues are shared among participants in the pool

7 Patent and standards (2) Some questions to consider: –What if a patent application or patent surfaces during the standard setting process? –What if a relevant patent surfaces after the standard is agreed? (once standard published, no application possible). Depends on whether willful concealment by participant or whether external third party –Observance of patent policy –Avoid anti-competitive behavior (patent pools) –Role of governments?

8 Considerations for participants in standard setting processes To be informed about the precise obligations (and sanctions) before joining an SSO Identify when and what exactly will have to be disclosed and how long the obligations last Balance the level of detail to disclose against the potential loss of protection Know the applicable terms of licensing patent rights Be aware of possible anti-competition issues

9 Some issues for further work Enforcement of patent policy Review unaddressed issues for patent policies of SSO (searches; transfer; applications before 18 m) Improve information on existing rights (patent and copyright information). Publicize s-setting process Possible SSO-WIPO cooperation? –Information on patent rights and their effect –Input on SSO IPR policies –Dispute resolution concerning SSO obligations –Increased use of patent information –International context

10 Thank you