Open Source and Standard-Essential Patents: More Alike Than Not

An interesting new paper from Martin Husovec, an assistant professor at the Tilburg University, draws parallels between Open Source and standardization regimes.  The paper, titled “Standardization, Open Source, and Innovation: Sketching the Effect of IPR Policies,” examines IPR policies in light of traditional standardization activities and the history of Open Source licenses.

In short, the paper concludes that “Open Source and standardization activities represent only different ways how to express technological choices.”  Both support innovation, with different parameters on who contributes and how. Technological innovators can use Open Source or traditional standardization (or even, as the article notes, both, depending on the license and royalty conditions) to successfully create and implement new technology.

The unspoken question that this paper raises in my mind is whether it may be incorrect to speak of Open Source and standardization as separate activities at all.  Instead, Open Source might correctly be viewed as a species of standardization activity, with particular license conditions and membership conditions. The success of Open Source activities—and other standards that implement royalty-free commitments, such as Bluetooth—shows that there’s a place in the continuum of standards policy for royalty-free licensing when participants wish that to be the case.

At the end of the day, the lesson to be drawn here is that private entities can—and do—decide among themselves how they wish to handle patent licensing, and that there’s no policy reason to interfere with those decisions.

Joshua Landau

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

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