WIPO will discuss next week a report on the international patent system. A section of it is mentioning open standards:
(iv) Open Standards
121. Among technology standards, there is particular interest for “open standards”. While there is no universally accepted definition of that term, all open standards have the following common characteristics: (i) the specification is publicly available without cost or for a reasonable fee to any interested party; (ii) any IP rights necessary to implement the standard are available to all implementers on RAND terms, either with or without payment of a reasonable royalty or fee; and (iii) the specification should be in sufficient detail to enable a complete understanding of its scope and purpose and to enable competing implementations by multiple vendors. Some define open standards as publicly available technical specifications that have been established in a voluntary, consensus-driven, transparent and open process, others appear to add to this definition the requirement that an open standard has to be available royalty-free. The defenders of the first definition favor patent policies on a RAND basis, which they believe to maximize flexibility through a commitment to license combined with the right of patent holders to receive reasonable and adequate compensation for their sharing of their technology, and trust in the co-existence of this model and a royalty-free model. They also question how, in a royalty-free environment, investments in research and development could be maintained in the long run and how a broad participation in standard-setting processes could be maintained. On the other hand, the advocates of the latter approach are convinced that society as a whole would benefit from the open and royalty-free access to standards, as it is the case, for example, in the Internet context, which had been established precisely in order to allow the free publication and retrieval of information from the web. According to them, this model would best ensure interoperability, greater innovation and consumer welfare. In addition, they argue that, even where a royalty-free policy is adopted, the benefit of standardization may outweigh the loss of royalty income in certain technologies, simply through greater quantities of a certain product being sold.
122. In this context, the notion of “open source” is often mentioned, but it should not be confused with open standards. While open standards are technical specifications developed in transparent and open processes and are available for implementation on reasonable and non discriminatory terms, but not necessarily royalty free, “open source” rather refers to a software distribution model based on an IPR, mainly copyright. Generally speaking, open-source software refers to software for which the source code (underlying programming code) is made freely available for use, reading the code, changing it or developing further versions of the software, including adding amendments to it (see sub-Chapter (c)(i) below for further details regarding open source). While open source software has been used to implement some ICT standards, other standards are implemented through proprietary software or, as is increasingly the case, through the use of mixed platforms that combine both open source and proprietary software. When governments and other users are in the process of selecting a specific technology to meet their needs for interoperability and/or free use of that technology, in addition to the open or proprietary nature of any software involved, factors such as overall costs, the maturity of the technology, and the support offered, should be taken into account.