Patents on Compatibility Standards and Open Source – Do Patent Law Exceptions and Royalty-Free Requirements Make Sense?

Abstract

This article discusses the problem that open source software can not support compatibility standards, which have patent royalties. As the use of open source continues to grow, the article asks whether it makes sense to include a compatibility exception in patent law or require royalty-free licenses in formal standardization organizations and procurement policies. The article proposes that the answer may not be in the patent policies – be they from the government or from industry standard bodies – but perhaps in the practices of individual companies. While some companies want to collect licenses for their “intellectual property” no matter what, one can also observe that some major information technology companies have recently dedicated patents on a royalty-free basis to the use of open source developers without any standardization or regulatory pressures. Encouraging such company practices might be the best option for a government if it considers patent royalties on compatibility standards a policy problem.