Fergus Cassidy

Patently unclear

OF all the acronyms in use on the net, my favourite of late is IANAL (I Am Not A Lawyer). It's not that new, but it's certainly getting a good run of late in the twilight zone where software standards meet patent rights.

There's no point in having a standard which can't be universally adopted because someone has stringent or prohibitive patent rights on some aspect or other. But at the same time, since the birth of the commercial internet, some big companies - IBM for one - have been patenting software as if their lives depended on it.

Having a software patent, however, is not much use in the end if a standard is adopted which doesn't include your little treasure chest. So as the web, e-commerce and the dot com magical mystery tour took off, big players concentrated on the potential rewards of a rapidly expanding network and the riches that would flow from the 'new economy'. Standards and interoperability were crucial in getting the net up and running.

But now that it is, there is some serious head-butting going on over the future role of the standards process and patents.

First off, the world wide web would not have happened in the way it did had the software code that makes it tick not been available to anyone and everyone unencumbered by patent rights. It would not be a great surprise to me if future historians equate Tim Berners-Lee with the likes of Gutenberg in terms of his contribution and influence.

But a number of things have happened to bring this cosy state of affairs to a halt. The dot com crash has left a lot of angry investors in its wake and the telecommunications shareholders are not very happy campers either. Throw in an economic downturn on top of everything and all roads lead to the fundamentalism of the Return on Investment.

A patent is one possible source of revenue in these lean times. The possibility of holding the winning jackpot numbers in the form of an undisclosed patent seems to have the same appeal as once owning shares in Pets.com. If that doesn't work out, having a patent can be a useful way of blocking a competitor or doing some sort of quid pro quo licensing deal. You scratch my patent and I'll scratch yours.

Nothing in the wide wide world of technology stays the same for too long. Standards change, particularly with software, which tends to be out of date as soon as it is written. So in an industry that is going through a period of belt tightening and navel gazing, it's not unexpected that software patents could be the next big set of hoops that we have to jump through. Hence IANAL.

In a valiant effort to deal with this, all eyes have been on Berners-Lee's World Wide Web Consortium (W3C) as it attempted to steer a course through the unchartered - and shark infested - waters of developing a new patent policy for web protocols.

And last week, following almost three years of work, W3C issued its final review draft [1] for approval. Daniel Weitzner, who chaired the process, explained that "thousands of hours have gone into the development of this policy, including participation of W3C members and invited experts from the open source/free software community. Our work has also benefited greatly from the voluntary efforts of members of the public who read and responded to the various drafts".

The interesting aspect of this final draft, which is expected to be approved in May, is that it's based on a royalty free model. In essence it means that all who participate in the development of a W3C standard must agree to license their patents for free.

This is something that many thought would never happen. Earlier drafts were drifting toward some sort of royalty payment, but such was the vocal opposition from the open source and free software community that they were invited to formally participate in the process. I've no doubt that their influence was crucial in arriving at the royalty free final draft.

Now that one of the most important standards body seems to have reached a consensus, attention is turning to the other crucial standards body on the net, the Internet Engineering Task Force (IETF).

This group is very different in structure and methodology from the W3C. The IETF has no formal structure or organisation and operates under the credo of 'rough consensus and running code'. Looking to deal with the thorny patent issue, it set up a working group late last year [2] to decide whether its patent policy needed to be changed. As I write, this group looks set to leave the status quo as it is and is happy enough with the 'if it ain't broke, don't fix it' solution.

But fresh from an arduous struggle inside the W3C, the open source/free software community have turned their attention to challenging the IETF's conclusions. There's an element of the social reformers crossing swords with the engineers and with most of the dialogue taking place on public mailing lists, it's getting hot and heavy. The engineers resent being told how go about their work, while the open source/free software people accuse the IETF of not caring enough about royalty free standards.

Finally, and on a related note, the European Community seems intent on allowing patents for software, which is again sharply dividing people. The EuroLinux community [3] opposes wide scale software patenting and their web site has excellent background information and an online petition against broadening software patenting.

---------------------------------------------------------------

LINKS

[1] Overview and summary of W3C royalty-free patent policy final draft, issued on 19 March 2003.

[2] The Internet Engineering Task Force working group on IPR mailing list archive

[3] Eurolinux Alliance petition to warn European Authorities against the dangers of software patents.