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Sunday, May 24 2015 @ 08:14 AM CDT

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Patent Pledges and Open Source Software Development

Intellectual property Rights

For all its benefits, one aspect of open source software does cause headaches: understanding the legal terms that control its development and use. For starters, scores of licenses have been created that the Open Source Initiative recognizes as meeting the definition of an “open source license.” While the percentage of these licenses that are in wide use is small, there are significant and important differences between many of these popular licenses. Moreover, determining what rights are granted in some cases requires referring to what the community thinks they mean (rather than their actual text), and in others by the context in which the license is used.

Rather like interpreting the applicability of the U.S. Constitution to modern life, except that there is no Supreme Court available to call the coin toss when people disagree.

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Dept. of Justice Blesses IEEE Rules on Injunctions and Reasonability

Intellectual property Rights

Following almost two years of debate, public posting of five drafts, and consideration of 680 comments, IEEE-SA preliminarily approved amendments to its Patent Policy to address these and other questions. IEEE-SA is the developer of the Wi-Fi standards (and thousands of other specifications). It is one of the major standards development venues in the information and communications technology industry, and thus a venue within which the question bears great weight. However, final approval of the amendments was made contingent upon receiving a favorable “Business Review” letter from the U.S. Department of Justice.

In a business review letter, the regulator responds to a detailed explanation and rationale for a proposed action, and indicates whether it would, or would not, be likely to challenge that action if implemented. In this case the DoJ expressed its belief that the proposed actions would be procompetitive rather than restricting competition, and that it would therefore not be inclined to challenge the final approval and implementation of the policy changes. That approval will occur later this month when the proposed policy updates are approved by the IEEE-SA Board of Directors.

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Revisiting DRM: What about Books?

Intellectual property Rights

Capt. Henry Morgan, courtesy of the Wikimedia CommonsMention the letters "DRM" and you're likely to immediately evoke two opposing and emotional reactions. The battle lines have become so fixed, in fact that you almost don't hear those letters debated at all any more. That's also because the war has already been fought, and largely lost, when it comes to music.

But what about books, now that they've become digitized? Should the arguments, the answers, and the result (entrenched, opposing camps) be the same?

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When FRAND meets FOSS: Bottom Up or Top Down?

Intellectual property Rights

Still looking for the perfect gift for that hard-to-buy-for someone? 

Problem solved!

Courtesy  	Yuval Y/Wikimedia Commons  GNU Free Documentation License, The U.S. may be the place where more emerging technologies bubble up than anywhere else, but when it comes to developing public policies to address new technologies, Europe continues to hold the lead. That reality was underlined recently with the release of a report summarizing the proceedings and conclusions of a European Commission (EC)/European Patent Office (EPO) workshop titled Implementing FRAND standards in Open Source: Business as usual or mission impossible?That workshop (on which more below) is only part of a larger series of efforts surrounding the ongoing evolution of the EU legal frameworkICT Standardization policy, and much more.

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WIPO Builds a FRAND Arbitration Business (but will they come?)

Intellectual property Rights

Bob Stein Field, courtesy of Zach J. Beavers/Wikimedia Commons - Creative Commons Attribution-Share Alike 3.0 Unported license.Ever since Apple set off the mobile platform wars by suing Samsung for what Steve Jobs believed were egregious borrowings of patented Apple smartphone innovations, the courts have been busy processing the disputes.  One of the most effective weapons the combatants made use of has been the so-called “standards essential patent” (SEP). And the armament of SEPS is very large, because each mobile device which implements many hundreds of standards. For example, if a company owns a SEP necessary to include a camera, wireless function or other key feature, the owner of the SEP can its price to license it, or even refuse to license it at all.

That is, of course, unless the SEP owner was part of the standards setting organization (SSO) that developed the standard in question, and had made a commitment to license that SEP on fair, reasonable and non-discriminatory (FRAND) terms.

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Judge Chin Reimagines "Fair Use" for the Internet Age

Intellectual property Rights

Last week, Judge Denny Chin handed down the latest opinion in the now-eight year battle between Google and the Author’s Guild (among others) over Google’s massive book scanning project. If the Author’s Guild fails to overturn the Judge’s decision on appeal, it will mark an enormous watershed in the ability of Web site owners to display copyrighted works without the prior permission of the owners of those works.

At issue was the appropriate application of the “fair use” doctrine under U.S. law to the Google project, a rationale that allows certain types of copying to be permissible that would otherwise be actionable. As applied by Judge Chin, the scope of that doctrine has seemingly been expanded by orders of magnitude. Indeed, in the case at hand, the judge has broadened its scope so dramatically that it’s difficult not to conclude that he was struggling to find sufficient legal precedents to justify a favorable outcome for Google. Many will contend that he fell short in that effort, and that his intent was instead to rebalance, if not rewrite, the doctrine itself in order to bring it into the Internet age.

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FTC Will Require Patent Assertion Entities to Disclose Key Business Information

Intellectual property Rights

It’s hardly news that the Obama Administration is no friend of so-called “Patent Assertion Entities,” or PAEs.  Not only members of the administration, but the big man himself have spoken publicly against those companies that make a business model out of buying and asserting patents, as compared to universities and others that actually develop, and then license, new technology (sometimes referred to as “Non-Practicing Entities,” or NPEs).

Most of what little we know about the business strategies, licensing practices and economics of PAEs has been gleaned from disclosures made in the course of litigation.  Now the Federal Trade Commission has decided to gather some first-hand information on exactly how PAEs operate. And, because it is a regulatory agency, it can do so by asking the PAEs themselves to respond, and under oath, to boot.

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The Value of Open Standards

Intellectual property Rights

Two pan scale, Courtesy of Nikodem Nijaki and Wikimedia Commons/Creative Commons Attribution-Share Alike 3.0 Unported licenseYesterday I distributed the latest issue of Standards Today, my free eJournal of "News, Ideas and Analysis." While the central focus of Standards Today is (wait for it...) standards, I also cover a variety of other issues, just as I do at this blog. As usual, some of the articles in this latest issue appeared in earlier versions here at the Standards Blog, while others appear for the first time in this issue.

The theme of the latest issue is the value of open standards, a much debated topic with little actual data to work with. I'm pleased to include in this issue a guest article by two Dutch professors, who take to task a government-commissioned report that found little value in preferring open standards over proprietary alternatives. The authors not only found quite the opposite, but also propose a methodology for performing further analyses in the same area.

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FTC Finalizes Settlement in Google Motorola Mobility Case

Intellectual property Rights

The Federal Trade Commission today issued the Final Order in its action against Google involving that company’s assertion of certain “standards essential patents” (SEPs). Google gained control of the patents in question through its earlier acquisition of Motorola Mobility and asserted them against various mobile device vendors. Those parties cried foul, claiming that the terms that Google had demanded were inconsistent with the obligations assumed to license the SEPS on “fair, reasonable and non-discriminatory” (FRAND) terms to all implementers of the standards in question.

Google agreed to a settlement with the FTC this past January, following which the FTC released a draft settlement order for public comment.  The Final Order just released includes a variety of adjustments and changes resulting from the 25 comments received during the public comment period. The 34 page Final Order can be found here  and a seven page letter, sent to each commenter and explaining the changes made, is here.

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The Problem With Patents: Operating with Blunt Instruments

Intellectual property Rights

Hunderfossen troll, courtesy of Åsmund Ødegård, Creative Commons Attribution-Share Alike 2.0 Generic licenseYesterday, the Obama administration announced a new effort to curb baseless patent lawsuits, which it believes are stifling innovation and economic activity.  The new initiative would take five actions under the President’s Executive authority, and also makes seven legislative recommendations intended, “to protect innovators from frivolous litigation and ensure the highest-quality patents in our system.”