Sunday, July 27, 2008

Telecommunications standards and patents

The success of mobile cellular standards can be largely attributed to the open and collaborative standardization process that standards are created in. Within Standards Development Organizations (SDOs), market participants jointly develop open standards by sharing know-how with each other, resulting in widely inter-operable products and therefore a competitive market. There is, however, a conflict between the voluntary invention-sharing of the SDOs and the concept of patents, which give rights-holders exclusive rights to inventions. To avoid patent-owners blocking telecoms standards, SDO participants agree to waive their normal patent rights. The rights waiver, known as the FRAND promise, means the patent-holder agrees to license its standards-essential patents on a fair, reasonable and non-discriminatory basis. The meaning of FRAND can be broken down into the following meaning, which is observed by the vast majority of the holders of essential cellular patents in the world:
1. Aggregated reasonable terms (ART). Essential patent-holders agree to grant licenses on terms that are objectively commercially reasonable, taking into account the overall licensing situation including the cost of obtaining all necessary licenses from other relevant patent-holders for all relevant technologies in the end product.
2. Proportionality. Compensation under FRAND must reflect the patent-holder’s proportion of all essential patents, but the equation is not just numeric. The compensation must within reasonable bounds reflect the contribution. Mobile cellular standards consist of a multitude of different technologies, new and old. Some of the technologies, such as CDMA or TDMA, are so old that any patents covering them have expired long ago. However, most innovation occurs during the SDO process, within a certain framework of requirements, set within the SDO itself or by higher-level SDOs. Requirements differ across standards and consequently inventions tend to be different too, as we have seen many examples of in this paper. Essential patents are complementary, rather than competitive, meaning an equipment vendor needs licenses to all essential patents owned by all patentholders, not just some of them. The proportionality part of FRAND necessitates a high degree of transparency in the marketplace. In bi-lateral negotiations, allegedly essential patents are scrutinized carefully in terms of essentiality and validity. Thirdparty efforts to examine patent claims are also highly useful, especially for those who do not have the expertise to make such assessments themselves. This paper aims to help increase the transparency of the essential patent landscape surrounding WCDMA by providing information about how the standard and the underlying technologies developed.

References : http://www.ericsson.com/