Commentary: Standing in way of standards

Gartner gives the reasons why it's a mistake to allow the use of patented technology in standards.

3 min read
By Kathy Harris, Gartner Analyst

It is a mistake to allow the use of patented technology in standards.

See news story:
W3C extends patent plan comment time

The point of a standards body should be to share work and come to a consensus for the betterment of the industry. Complex issues concerning patenting of technology should be considered after mature standards are achieved. At the very least, any decisions should be considered case by case.

Furthermore, charging for the use of patented technology components (such as software, designs and business processes) opens the door to the following costly, complex and time-consuming issues:

 Patent ownership: Developing complex standards and their component parts often requires long periods of time--sometimes years. Participating companies and individuals change frequently, making the "owner" of a patented "kernel" difficult to determine.

 Derivative patents: If a patented kernel is reused, but the derivative product is largely new, should patents be allowed on derivative products? What will be the determinants of new vs. derivative vs. original technology?

 Worldwide differences in patent laws: Europe, for example, is considering laws on patenting software. How will the standards and patents mitigate regional and national differences in regulation?

 Alternative standards bodies: Choosing to allow payment for patents will inevitably encourage still more alternative standards bodies (by industry, for instance) and domain-specific standards.

 Cost: Payment for use of a standard will likely be a barrier to its adoption by end users and vendors.

 Determining the winning vendors: Patents are typically in the domain of large companies that can afford to impose their rights on smaller companies. However, large companies often find process knowledge leaking out to small companies started by former employees. The use of patented technology in standards will benefit the larger vendors that have the time and resources to undertake the patenting process.

 Overhead of managing the payment process: The feasibility of developing a "fair" cost structure is questionable. Is the cost the same for small vs. large users? How will usage be measured? Who will provide the oversight of this process? How will the administration be funded?

 Resolution of issues: Determination of infringements or failure to make adequate payment will be costly and time consuming. The standards bodies will require arbitration and litigation agents. Many issues will not be resolved by this body and will wind up in the court systems. Resolution will take time and diminish standards adoption or enhancement while unresolved.

(For a related commentary on a recent W3C recommendation on XML, see Gartner.com.)

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