Can You Feel the Tension?

There's an important conference taking place in Brussels next week: "Tensions between Intellectual Property Rights and the ICT standardisation process: reasons and remedies - 22 November 2010". It's important because it has a clear bearing on key documents like the forthcoming European Interoperability Framework v2.

It all sounds jolly reasonable:

Key ICT standards are perceived by many as critical technology platforms with a strong public interest dimension. However, concerns are voiced that Intellectual Property Rights (IPRs) and their exclusivity potential, may hinder or prevent standardisation.

The European Commission and the European Patent Office (EPO) are organising a conference to address some specific issues on patents and ICT standards: are today’s IPR features still compatible with fast moving markets and the very complex requirements of ICT standardisation in a global knowledge economy environment? Where are problems that we can we fix?

Unfortunately, I can't go - actually, better make that *fortunately* I can't go, because upon closer inspection the agenda [.pdf] shows that this is a conference with a clear, er, agenda: that is, the outcome has already been decided.

You can tell just by its framing: this is "a conference to address some specific issues on patents and ICT standards". ICT is mostly about software, and yet software cannot be patented "as such". So, in a sense, this ought to be a trivial conference lasting about five minutes. The fact that it isn't shows where things are going to head: towards accepting and promoting patents in European standards, including those for software.

That's not really surprising, given who are organising it - the European Commission and the European Patent Office (EPO). The European Commission has always been a big fan of software patents; and the EPO is hardly likely to be involved with a conference that says: "you know, we *really* don't need all these patents in our standards."

Of course, the opposite result - that patents are so indescribably yummy that we need to have as many as possible in our European ICT standards - must emerge naturally and organically. And so to ensure that natural and organic result, we have a few randomly-selected companies taking part.

For example, there's a trio of well-known European companies: Nokia, Ericsson and Microsoft. By an amazing coincidence - as an old BBC story reminds us - all of them were fervent supporters of the European legislation to make software patentable:

Big technology firms, such as Philips, Nokia, Microsoft, Siemens, and telecoms firm Ericsson, continued to voice their support for the original bill.

So, no possible bias there, then.

Then there are a couple of outfits you may have heard of - IBM and Oracle, both noted for loving software patents slightly more than life itself. So maybe a teensy bit of bias there.

But wait, you will say: you are being totally unfair. After all, is there not an *entire* massive one-hour session entitled "Open source, freely available software and standardisation"? (although I do wonder what on earth this "freely available software" could be - obviously nothing so subversive as free-as-in-freedom software.)

And it's true, that session does indeed exist; here's part of the description:

This session will explore potential issues around standardisation and the topic of open source software and free licences. We will look at examples of how standards are successfully implemented in open source. We will also consider licensing issues that may exist regarding the requirement to pay royalties for patents present in standards, as well as other licensing terms and conditions in relation to the community approach common in open source and free software technology development.

But what's the betting that those "examples of how standards are successfully implemented in open source" will include rare and atypical cases where FRAND licences have been crafted into a free software compatible form, and which will then be used to demonstrate that FRAND is the perfect solution for ICT licensing in Europe?

Luckily, we have Karsten Gerloff from the FSFE to fight against the software patent fan club, and tell it as it is. Pity he's on his own on this though - and no, poor Erwin Tenhumberg does not count. He may be "Open Source Programme Manager, SAP", but SAP is one of the fiercest proponents of patenting software in Europe, as I've discussed a couple of times.

So this leaves us with Karsten against the collective might of the European Commission, EPO, Microsoft, Nokia, Ericsson, IBM, Oracle and SAP: clearly they'll be some of that "tension", as the conference title promises, but a fair fight conducted on a level playing-field? Not so much....

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