OPEN SOURCE IPRs THE CHALLENGE FOR STANDARDISATION

OPEN SOURCE & IPRs THE CHALLENGE FOR STANDARDISATION Mr. Stéphane TRONCHON ETSI LEGAL COUNSEL Sophia Antipolis, 16 Dec. 2004 Mr. Tronchon - ETSI Legal Counsel 1

OUTLINE q IPRs & STANDARDISATION DYNAMIC IN EUROPE q Introducing the « Stand. IPRs » ecosystem q European Policy and some key legislative issues impacting the « Stand. IPRs » ecosystem q OVERVIEW OF IPR TRENDS OVERSEAS q US q ASIA q QUESTIONS TO THE OPEN SOURCE COMMUNITY q THE WAY AHEAD - COMMUNITIES IN CONCERT Mr. Tronchon - ETSI Legal Counsel 2

THE « STANDIPRs » ECOSYSTEM q Value in knowledge-based societies stems from intellectual capital and content management q Innovation is enhanced and protected by Intellectual forms of property q Roles of standardisation and network effect impact value q Issue of IPR acess is critical • The FRAND mechanism in the standardisation dynamic • Complementary role of collective forms of IPR management « patent pools » INNOVATION (incl R&D) IS REWARDED - IPR protection DEPLOYED - standardised SHARED - licensed Mr. Tronchon - ETSI Legal Counsel 3

COMPETIVENESS / STANDARDISATION / IPRS - EU POLICIES (1 of 2) - q EU STUDY (DG RESEARCH - 2000) Ø Increasing tension between IPR and standards q LISBON STRATEGY Ø EU should be the most competitive knowledge based economy in the world by 2010. Ø Knowlegde Based Econmy established on IPRS ! q EC COMMUNICATION OCT. 2004 Ø Reform of technical harmonisation needed - Role of standardisation under review Ø Emphasis anounced for voluntary standardisation on Services, ICT, consumer and environment protection Mr. Tronchon - ETSI Legal Counsel 4

IPR PROTECTION IS OF STRONG CONCERN - EU POLICIES (2 of 2) q RELEVANT IPRs LEGISLATION … Getting there …. Ø « Software Patent » Directive Ø Towards a Community Patent q HIGHLIGHT ON RECENT Art. 82 CASE ACCESS TO INTELLECTUAL PROPERTY Ø Dominant firms are obliged to share their assets with rivals - Access to interoperability information between Windows PC system and work group server ( « server information » ) - COMPULSORY LICENSING of interoperability information in PC/server software market Ø Competition law has attempted to set the optimal environement for innovation Mr. Tronchon - ETSI Legal Counsel 5

IP PROTECTION IS NOT GOING TO DISAPPEAR - USA q FOCUS is on IP and THE ANTITRUST FRONTIER Ø Lessons from the Rambus Case US standards bodies should review and reconsider the adequacy of their IPR Policies & Procedures Ø ABA: Creation of a Technical Standardisation Law Chair q FTC/DOJ Hearings (Governement) [ Held in 2002, over 300 panelists, 100 written submissions ] Ø First Report – June 2003 « To promote innovation: The Proper Balance of Competition Law and Patent and Policy » , followed by recommendations to the USPTO Ø Second Report Forthcoming – Should address Standards Setting Issues Mr. Tronchon - ETSI Legal Counsel 6

IP PROTECTION IS KEY - ASIA q JAPAN Ø Governmental reform over competition law & IP (FTC) Ø Competition Policy Research Center upcoming study re patent innovation and standardisation q CHINA Ø WTO adherence Ø Patent Applications increased fivefold in SIPO from 1991 to 2001 Ø IPR Enforcement is necessary for business (cf. ANSI letter to Congress earlier this year) (295 IPR infringements cases at the borders in 2000) q MOU ON TRILATERAL COOPERATION / INDUSTRIAL POPERTY Ø Common work continue for the EPO/ USPTO /JPO Mr. Tronchon - ETSI Legal Counsel 7

THE OPEN SOURCE PRINCIPLES … 1. “ Licensees are free to use open source software for any purpose whatsoever. 2. Licensees are free to make copies of open source software and to distribute them without payment of royalties to a licensor. 3. Licensees are free to create derivative works of open source software and to distribute them without payment of royalties to a licensor. 4. Licensees are free to access and use the source code of open source software. 5. Licensees are free to combine open source and other software ” L. Rosen, General Counsel for the Open Source Initiative Mr. Tronchon - ETSI Legal Counsel 8

OPEN QUESTION FOR THE OPEN SOURCE COMMUNITY q WHEN SUPPORTING CORPORATE STANDARDS ACTIVITIES Ø Specific “in house” IPR management is needed when involved in standardisation Ø Understand the SDOs and Fora bylaws and their implications on your IPRs portofolio Ø Identify and understand the IPR rules • Disclosure / Patent search / Licensing requirements? • Is the Open Source philosophy compatible with the rules of recognized standards bodies and fora ? Ø Definition of your licensing strategy • How to asses the opens sources licenses with existing ones? HOW TO BALANCE YOUR IPR STRATEGY WITH THE OPEN SOURCE MODEL ? Mr. Tronchon - ETSI Legal Counsel 9

OPEN QUESTION FOR THE OPEN SOURCE COMMUNITY q REQUIREMENT OF EC COMPETITION LAW Ø EC Competition law (Art. 81 – « Undertakings that restrict competition » & Art. 82 – « Abuse of dominant postion » ) Ø Preferably participate in SDOs and For a that have established competition law check lists (transparent procedures, well explained, rules re IPR disclsoure) IS THE OPEN SOURCE FREE FROM ANTI COMPETITIVE RISK ? Mr. Tronchon - ETSI Legal Counsel 10

THE « STANDIPRs » ECOSYSTEM & OPEN SOURCE …. SO WHAT ? q « OPEN » REFER TO DIFFERENT THINGS ! Ø Ø Ø Specific Process ? Certain access to IPRs, to knowledge? IPRs for « free » Way of working / Methodology? Business Model? q « SOURCE » REFER TO SOURCE CODE Ø Open Source is the availability of source code Ø What is the standardisation philosophy re source code ? • Off the shelf v. Discussion in SDOs Ø ITU-T Guidelines on Software Copyright Mr. Tronchon - ETSI Legal Counsel 11

NO « ONE FITS ALL » IPR POLICY q Different regimes but ALL recognizing the value and insisting on the protection of Intellectual Property ! Royalty Free (FRANDZ) No Licensing Restricted Licensing FRAND Open Source q Tegere doesn’t mean non accessio …. … Libera doesn’t mean gratis … … Gratis doesen’t mean libera. WHERE DO YOU BEST WRITE STANDARDS WHEN LARGE IPR REGIME SPECTRUM ? Mr. Tronchon - ETSI Legal Counsel 12

YOU SAID OPEN STANDARDS ? The Hallmarks of ETSI are : q q q q q Membership is open (Direct Membership) Broad based public review Consideration and response to comments Incorporation of approved modifications into a draft Deliverable Consensus based Voting procedures benchmarked on EU Treaties Discussion on Technology Innovation selected and diffused IPRs rules respecting the IPR owner’s investment Deliverables free of charge PROCESS IS A CRITICAL SUCCESS FACTOR ! Mr. Tronchon - ETSI Legal Counsel 13

TO CONCLUDE q The “Stand. IPRs” ecosystem promotes and protects innovation (a specific ecology) q Open Source and the standardisation making process are compatible but the right questions must be: grasped / perceived understood and asked ! q Standardisation, Diffusion of Innovation and Sustainable Development is what really matters ! q Process is key ! THANK YOU ! Mr. Tronchon - ETSI Legal Counsel 14