Interoperability is the priority requirement for integrating the heterogeneous landscape of existing software solutions on the market, without favouring certain business models. Standards are one of various existing means to meet this requirement. The overall goal is to achieve a balanced practical approach to the benefit of interoperability, and neutrally coping with the interests of all stakeholders involved, without impacting in an undue way legitimate and valuable rights.


  • Depending on business interests at stake, there are differing views about what works and what does not work in standardisation
  • It is not possible to satisfy all existing requirements at the same time
  • No business model/interest should be favoured; e.g., on the differing business interests, see the following quotes (cp. CERNA study, at p. 84 ):
    • Pure innovators are entirely dependent on licensing revenues to continue their operations (...)
    • Pure manufacturers have converse incentives (royalties represent a cost of production) (...)
    • Vertically integrated firms that both develop technology and sell products have mixed incentives (...)
    • The immediate incentives of buyers of products implementing standards relying on patented technologies are generally in line with manufacturers (...)
  • Perceived issues are predominantly of practical nature; e.g., such practical issues may lie in the following:
    • Control (...)
    • completeness (...)
    • compliance (...)
    • cost (...)
    (cp. further explanations in the EICTA White Paper on Standardisation and Interoperability, at p. 12 et seq. )
  • While the above criteria encompass the full range of issues relevant for an open standard, some specific aspects of the process of open standards development can further be emphasised:
    • Multi-lateral control (...)
    • transparency (...)
    • agreed process for ratification (...)
    • open availability (...)
    (see further explanations in the EICTA White Paper, as cited above)
  • Specifically on IPR, perceived issues likewise appear to be predominantly of practical nature, i.e. applying the existing law rather than changing the legal framework itself
    • Generally, the practical issue is seamless handling of declared "essential patents" without slowing down the progress of the technical standard setting
    • At the same time, conditions in standards IPR policies should be set, from the beginning, in a way to encourage valuable contributors to participate in the development of a standard
    • Industry should voluntarily agree on setting reasonable IPR policies and balancing the needs of IPR holders and consumers in standards work. For example, the OASIS Open industry consortium has a framework of three different IPR modes and in practice, most working groups have voluntarily decided to use one of the royalty-free modes.
    • Mechanisms are needed to sort out really valuable contributors - and their possible patents - during standardisation, and to negotiate adequate licensing conditions for pertinent patents
  • No evidence exists that something is to be corrected in the legal framework itself
    • The existing rules of law provide means to correct cases of abuse, incl. potential "hold up" or "patent ambush" cases
    • Somebody who is decided to breach existing rules of law cannot be prevented from doing so
    • Cases of abuse are still rare, at least in Europe
    • It may appear to be an issue to apply the already existing rules of law, rather than re-defining them
  • If any changes in the legal setting are envisaged at all, the true issue should be compliance with recognised basic/constitutional principles warranting (1) Property (2) Contractual Freedom and (3) Legal Certainty in the EU Member States
    • (1) Property and (2) Contractual Freedom are carrying principles, warranting parties' liberty to dispose of, and to negotiate their patents
    • Under the (3) Legal Certainty principle, e.g. if generally applying interoperability or standards IP policy exceptions should be imposed by public authorities, such exceptions may absolutely require balanced and predictable rules enabling affected parties to unambiguously identify patents they might actually be required to give away
    • Additionally, the (1) Property principle may warrant that at least accurate conditions including monetary compensation are clearly defined under which such patents would need to be given away
    • It should not make sense to consider legal settings that might be void under the existing basic/constitutional principles in the Member States.


  • On factual basis, particular trends are a strong movement versus "mixed business models" (Open Source / Closed Source / vice versa / any other) in the software business world, making it even more compulsory to not favour one existing business model
  • On legal basis, particular trends are, e.g., proposals like "ex ante conditions" or "royalty free conditions" for standards IP policies
  • Before considering the actual impact of any such trends at this point of time, we would like to re-emphasise that the true challenge should lie on applying the existing rules of law rather than changing the legal setting (see above)
  • While time is too short to focus on true practical improvements within the time frame given to this Working Group, we are prepared at any time to share our insight


  • We again re-emphasise that true barriers lie in applying the existing rules of law rather than changing the legal setting


  • As emphasised in the header, the true benefits lie in Interoperability, be it achieved through standards or otherwise, and respecting the existing legal framework to the benefit of true contributors and all other parties involved


  • Generally: It is respectfully submitted to please avoid replication of work and initiatives on the issues (probably triggered by some confusion on the issues, there are too many initiatives running between different branches at the Commission on topics overlapping with the present Workshop; it is nearly impossible to follow all these initiatives and their possible impact)
  • Focus on concentrated fact finding initiatives: What works, what doesn't work in practice?
  • Before envisaging any proposals of legal nature, examine possible improvements on practical side
  • If any changes in the legal setting are envisaged at all: Subject any pertinent proposals to a careful legal analysis re. compliance with recognised basic/constitutional principles warranting (1) Property (2) Contractual Freedom and (3) Legal Certainty in the EU Member States (see above)