FOLLOWING the KnowRiۤht conference which we wrote about in the morning (FFII has a whole page about it), the president of the FFII linked to this article from Slashdot, which in turn links to a Microsoft booster from The Register. We have already written about this article and sort of defended Canonical's position when it comes to H.264 patents*. FFII's president, however, reacted differently and wrote: "Time to book BoycottUbuntu.com? How much did Canonical spent on the H264 patent license for Ubuntu? Ask them please."
On Tuesday, Microsoft was awarded a U.S. patent for "portable applications." The description of this innovative technology? Running an executable file from a flash device.
It is long established that intellectual property law applies to computer software. Source code written by programmers is subject to copyright and, where programmers are employees, the copyright is almost always assigned to their employer. The processes and techniques embodied in that source code may be further protected by patents. Individual programmers or, as is more common these days, teams of programmers invent technical solutions to problems, and those solutions may be protected by patents. Again, a patent will usually be assigned to the employer, if any, of the inventor, but sometimes to some other organization.
Uncertainty over royalty payments is a bugbear of the wireless industry, as seen by the current nervousness over the IPR burden that will materialize in LTE devices. Once standards are set and start to appear in commercial products, patent holders often emerge from the woodwork to claim their fee, leading to complex cross-licensing negotiations and sometimes lawsuits and hefty royalty fees.
Many bodies, particularly the European standards agency ETSI, have been trying to get patent holders to declare their holdings in a would-be standard upfront, and the European Union is now offering a powerful incentive to turn this into best practise. The EU says companies that provide technology that could be adopted in industry standards could be exempted from strict European antitrust laws if they set out, from the start, the maximum fees they would charge for their patents.
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According to the Reuters news agency, the draft rules contain benchmarks to assess the level of FRAND licensing fees. The Commission said companies would need to disclose their intellectual property rights before their patents were included in standards. "No or unclear disclosure obligations may furthermore give incentives to 'patent ambushes', that is companies hiding patents until industry is locked in and thereafter refusing to license or request exorbitant fees," the statement said.