Can We Legislate Past the H.264 Debate?

Midnight Warrior writes "We could solve the H.264 debate if a country's legislature were to mandate that any patents that contribute to an industry-recognized standard were unenforceable in the application of that standard. Ideally, each standard would also be required to have a 'reference design' that could be used without further licensing. This could also solve problems with a ton of other deeply entrenched areas like hard drives, DRAM, etc. RAND tries to solve this strictly within industry, but both the presence of submarine patents and the low bar required to obtain a patent have made an obvious mess. Individual companies also use patent portfolios to set up mutually assured destruction. I'm not convinced that industry can solve this mess that government created. But I'm not stupid; this clearly has a broad ripple effect. Are there non-computer industries where this would be fatal? What if the patents were unenforceable only if the standard had a trademark and the implementer was compliant at the time of 'infringement'? Then, the patents could still be indirectly licensed, but it would force strict adherence to standards and would require the patent holders to fund the trademark group to defend it to the end. In the US model, of course."

Comments

You got the government industry bought

[0xdeadbeef]

I'm not convinced that industry can solve this mess that government created.

You people are like children. Mommy, let us do this! Mommy, let us do that! Then things don't work out quite the way you wanted them to. Mommy, it's all your fault!

Back in 1988...

[Kupfernigk]

I was in a meeting of our (electrical) industry body discussing how we would work on harmonisation of standards across the EU, with a QC (senior legal counsel) present as adviser. I asked more or less the same question - whether it would be possible to mandate that European law should require that any technology essential to meet a harmonised standard be free of licensing requirements. This would mean that a company making a single product relying on patented technology would only be able to sell it across the EU if the patent was unencumbered by licensing requirements. The reply of learned counsel?

You're a smartass. Everybody hates a smartass.

No

[Kjella]

I don't think it'll in any way be practical to expropriate that IP, which is essentially what you are talking about. However, that is not the biggest problem with patents. The biggest problem with patents is that a standard is never proven patent free, only that no claim of infringement has been made against it yet. This is why I would like standards bodies to have the ability to call for patents, and any patent claim not made within a reasonable time frame is forfeit as related to that standard. A relevant current example is Theora - they claim it's patent free but is it really? What if someone like ISO or ITU-T could publish the standard, demand that any patent claims must be done within three months and if none were made you knew with 100% certainty that any later claims are null and void? It would be wonderful. I don't see this as a way of freeing IP, but it would go a long way of reducing patent FUD and submarine patents. Even if it should turn out to be patented you know which bits and could work to remove those and try again.

Re:What's an "industry-recognized standard"?

[tambo]

...any patent infringement claims against H.264 must be made known within 6 months of the passage of this law.

I don't think that's what the OP means. Here's what he wrote:

any patents that contribute to an industry-recognized standard were unenforceable in the application of that standard.

I think he means that any patents contributed to an industry standard consortium (like the WiFi Alliance) can't be enforceable. You're suggesting something about patents not contributed to the standards body being enforced against implementations of the technology that are authorized by the standards body. Or something.

Honestly, I'm not entirely sure what either of you mean, or why. And IAAL - in fact, I practice in this area every day.

Is this about making sure that technologies issuing from the standards body are freely available for use by anyone? That's the whole point of the patents owned by the body - to ensure that implementations follow the guidelines of the standards body (particularly about compatibility.) So you're lobbying to allow people to implement standardized technologies in non-compatible ways - i.e., in favor of "embrace, extend, extinguish?" I don't think anyone wants that.

Or maybe you're arguing that if a company has technology and patents verging on the subject matter of an industry standard - e.g., a technology competing with WiFi - but chooses to keep it proprietary, then the company can't assert its patents against implementations issuing from the standards body. That's also a bad idea - should we really force the entire industry onto one standard? Doesn't that deter the advancement of technology through the development of alternative standards that might be better? Bluetooth was first conceived as a potential competitor for WiFi, but it has its own niche and is widely implemented for headsets and such. Under this type of rule change, Bluetooth would have been scrapped as soon as WiFi took hold.

As an aside - the "submarine patents" cited by the author of this post haven't existed for decades, because (1) the patent term calculation was changed to be measured not from the date of issue, but from the date of filing, and (2) most patent applications are published at 18 months.

This is a complex field. It's easy to get confused. But the field suffers from a wide range of folks who don't understand it, and yet still want to "fix" it. Hence, this post, and many like it on Slashdot and elsewhere.