Editing Open standard (section)

==Patents==
In 2002 and 2003 the controversy about using [[reasonable and non-discriminatory]] (RAND) [[licensing]] for the use of patented technology in [[web standard]]s increased. [[Bruce Perens]], important associations as [[Free Software Foundation|FSF]] or [[Foundation for a Free Information Infrastructure|FFII]] and others have argued that the use of [[patent]]s restricts who can implement a standard to those able or willing to pay for the use of the patented technology. The [[requirement]] to pay some small amount per user, is often an insurmountable problem for free/open source software implementations which can be redistributed by anyone. [[Royalty-free]] (RF) licensing is generally the only possible license for free/open source software implementations. Version 3 of the [[GNU General Public License]] includes a section that enjoins anyone who distributes a program released under the GPL from enforcing patents on subsequent users of the software or derivative works.

One result of this controversy was that many governments (including the Danish, French and Spanish governments singly and the EU collectively) specifically affirmed that "open standards" required royalty-free licenses. Some standards organizations, such as the [[W3C]], modified their processes to essentially only permit royalty-free licensing.

Patents for [[software patent|software, formulas and algorithms]] are currently enforceable in the US but not in the EU. The European Patent Convention expressly prohibits algorithms, business methods and software from being covered by patents.<ref>[http://www.european-patent-office.org/legal/epc/e/ar52.html#A52_2_c European Patent Convention Article 52 paragraph (2)(c)]</ref> The US has only allowed them since 1989 and there has been growing controversy in recent years as to either the benefit or feasibility.

A standards body and its associated processes cannot ''force'' a patent holder to give up its right to charge license fees, especially if the company concerned is not a member of the standards body and unconstrained by any rules that were set during the standards development process. In fact, this element discourages some standards bodies from adopting an "open" approach, fearing that they will lose out if their members are more constrained than non-members. Few bodies will carry out (or require their members to carry out) a full patent search. Ultimately, the only sanctions a standards body can apply on a non-member when patent licensing is demanded is to cancel the standard, try to rework around it, or work to invalidate the patent. Standards bodies such as W3C and OASIS require{{Citation needed|date=June 2008}} that the use of required patents be granted under a royalty-free license as a condition for joining the body or a particular working group, and this is generally considered enforceable.{{Citation needed|date=June 2008}}

Examples of patent claims brought against standards previously thought to be open include [[JPEG#Patent controversy|JPEG]] and the [[Rambus]] case over [[DDR SDRAM]]. The [[H.264/MPEG-4 AVC#Patent licensing|H.264 video codec]] is an example of a standards organization producing a standard that has known, non-royalty-free required patents.

Often the scope of the standard itself determines how likely it is that a firm will be able to use a standard as patent-like protection. Richard Langlois argues that standards with a wide scope may offer a firm some level of protection from competitors but it is likely that Schumpeterian creative destruction will ultimately leave the firm open to being "invented around" regardless of the standard a firm may benefit from.<ref name="Langlois, Richard N 1999"/>