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The Recipe for Open Standards (and Why ISO Can’t Cook)

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Recipe

First some definitions.  Let’s define an “open standard” as one that is:  1) freely available, 2) developed in an open process and 3) freely implementable, e.g., is royalty free.  Clearly there are interests out there that attempt to soften these criteria, but that only demonstrates the competitive power presented by truly open standards.  We see similar “dumbing down” pressures on other popular marks of distinction, such as the constant pressure by “big agriculture” to allow more permissive use of pesticides in organic/biologique food.  It is almost a law of nature that any item of relative scarcity and value will be counterfeited.  Dumbing down definitions is just one way to counterfeit an open standard.

At the same time there is clearly a spectrum of openness, from proprietary, trade-secret technology at one extreme, progressing through proprietary non-RAND specifications, proprietary RAND specifications, RAND standards to RF standards.  But for sake of argument, let’s draw the line for open standards at these three criteria:   freely available, open process, and freely implementable.

So how do you make an open standard?  In the industry we have a number of years experience creating open standards.  We know what works and what doesn’t.  We’ve learned from experience and especially from failure, the harshest of teachers, e.g., Rambus and OOXML.  At a high level, this experience has led to the following recipe for open standards, a recipe practiced by several notable standards consortia today:

  1. Publish your standards on the web for free download and use.   This seemingly simple step has enormous repercussions for a standards organization, since it eliminates an entire business model, that of selling standards.  So an organization that produces open standards must have an alternative source of income to fund its operations, for example,  membership fees,  corporate or government sponsorship, etc.
  2. Define and enforce an open process for the development of standards.  Much has been written and said about the further qualities that define an open process, but generally they focus on openness, balance, lack of domination, broad-based public review, consensus, due process, right to appeal, etc.  ANSI’s Essential Requirements [PDF] is an excellent outline of the minimum process requirements for ANSI, the organization that accredits US standardizers.
  3. Have a clearly-defined, enforceable IPR policy that ensures that implementors of the standard have royalty free (RF) access to all rights needed to implement the standard.  This area evolved quite a bit, especially post-Rambus, and the best practices now include: defining obligations of members with regard to patents they may control that read on the standard, defining obligations of 3rd parties who submit comments or proposals related to a standard, ensuring copyright assignment from contributors, defined 3rd party patent disclosure obligations, etc.  The complexities of rights given during the drafting of the standard, durable obligations of members who leave, and how rights transfer to future maintenance releases of a published standard — all these are concerns of standards organizations that strive to produce open standards.  For reference, note the IPR policies of  OASIS and the  W3C.  (Now there may be some of you thinking, “IPR wouldn’t matter if we would just eliminate software patents”.  But it is not so easy.  First, we need to consider copyright as well.  And second, remember that not all standards involve only software.  Many relevant technologies today are defined by standards that encompass software,  hardware and physical media components , e.g., Blu-ray.)

As you can see, there is a set of corresponding rights and obligations that the standards organization must deal with.  The right of  the user to freely download the standard derives from the obligation of contributors to assign copyright to the standards organization, so it in turn can make the specification freely available.  And the right of implementors to implement the standard without payment of royalties comes from the obligation of contributors to waive royalties from patents that they control that are necessary to implement the standard.  And the right of implementors to be safe from 3rd party patent claims — to the extent this is ever possible — comes from the obligation of members to disclose such 3rd party patents.

It might be useful to compare this to a well-run open source project, one that requires that contributors sign and fax in a membership or contributor agreement, assigning copyright and making assertions regarding necessary patents.  In a similar way, participation in an open standards organization requires a binding membership agreement, to ensure that there is a record of the obligations that have been undertaken.

ISO in the kitchen

Now what about ISO?  I claim, quite cheekily, that they cannot cook.  So let me right away make the case why ISO, by their own rules and procedures, cannot reliably develop open standards.

First, let’s look at the “free availability” question.  ISO’s business model is predicated on the sale of standards.  If we look at a typical example, say a copy of the C++ programming language standard, we see it sells for 380 CHF ($374.38).  Note that everyone directly involved in the development of ISO standards is a volunteer or funded by outside sponsors.  The editors,  technical experts, etc., get none of this money.  Of course, we must also consider the considerable expense of maintaining offices and executive staff in Geneva.  Individual National Bodies are also permitted to sell ISO standards and this money is used to fund their own national standards activities, e.g., pay for offices and executive staff in their capital.  But none of this money seems to flow down to the people who makes the standards.  In fact, in the US I need to pay $1200/year for the privilege of volunteering my time to create standards that are then sold at costs that I could not afford.    And what rights do you get for your $374?  Very little.  You can print one copy.  ISO reserves almost all rights, as they explain in their copyright brochure [PDF].

Note that ISO does make a small number of its standards available for download at no cost, generally ones that originated from outside of the ISO system.  (It is hard to restrict access if the standard was born free elsewhere). But these “Publicly Available Standards” represent only around 1% of the 18000+ ISO standards.

So is this compatible with an open standard?  I don’t think so.  And if $374 is exorbitant for me, imagine what impact these ISO standards prices have on small technology firms, especially in the developing world?

What about criterion #2, the open process?  Let’s go down the ANSI essential requirements list in more detail:

On Openness, ANSI says:

Participation shall be open to all persons who are directly and materially affected by the activity in question. There shall be no undue financial barriers to participation. Voting membership on the consensus body shall not be conditional upon membership in any organization, nor unreasonably restricted on the basis of technical qualifications or other such requirements.

A big fail there for ISO.  In particular, materially affected persons are not able to vote at all, but only indirectly via required membership in a National Body.  The entire ISO system is non-open.

On Lack of Dominance,  ANSI says:

The standards development process shall not be dominated by any single interest category, individual or organization. Dominance means a position or exercise of dominant authority, leadership, or influence by reason of superior leverage, strength, or representation to the exclusion of fair and equitable consideration of other viewpoints.

We saw during the OOXML ballot, and especially at the BRM, how this totally fell apart.  It was raised several times that Microsoft was dominating the committees, sometimes representing more than 50% of the people in the room.  But ISO leadership dodged the issue, saying there was nothing they could do about it,  based on their rules.  This may be true.  But that is just acknowledgment that their rules are not able to prevent dominance.

And on Balance, ANSI says:

The standards development process should have a balance of interests. Participants from diverse interest categories shall be sought with the objective of achieving balance.

Like committees containing almost exclusively Microsoft Business Partners?  Fail.   In fact you can go up and down the list and ISO fails to meet these minimum requirements.

OK.  Maybe it is unfair of me to subject ISO to the criteria that we use in the US to accredit little industry standards consortia.  Maybe it is unfair of me to suggest that the International Organization for Standardization should meet the openness requirements that are regularly met by stalwart giants like the International Institute of Ammonia Refrigeration or the Hardwood, Plywood & Veneer Association? (Full ANSI list is here [PDF]) Maybe you tell me that it is unreasonable and asks too much.   I would accept that response.   But I believe that, as it is today, if ISO tried to get accreditation as a standardizer in the US, it would fail, for inability to meet basic minimum openness and due process requirements.  And that saddens me.  It should sadden you as well.

The 3rd and final ingredient, as we know, is the IPR policy.  I ask you to glance over the ISO/IEC/ITU  “Common Patent Policy” and compare it to the IPR policies mentioned above from the W3C and OASIS.  I think you will first be struck by how short and fuzzy the ISO statement is, and by the complete lack of any stated obligations for ISO members with regards to patents.

For example, the main disclosure requirement is stated as:

Any party participating in the work of ITU, ISO or IEC should, from the outset, draw the attention of the Director of ITU-TSB, the Director of ITU-BR, or the offices of the CEOs of ISO or IEC, respectively, to any known patent or to any known pending patent application, either their own or of other organizations, although ITU, ISO or IEC are unable to verify the validity of any such information.

Now, I am not a lawyer, but even I can see that “any known patent or known pending patent application” is vague to the point of making it meaningless.  There is zero qualifications or restrictions given.  I know that there are 8 million or so granted US patents, maybe 10 million if you include pending applications, and that is just in the US.  Should I report them all?  That’s what it appears to be recommending (but only recommending, since it is stated as a “should” not a “shall”) when it says “any known pending patent application”.

There appears to be no serious consideration given to what the disclosure obligation is.  Am I supposed to disclose patents that I actually know read on any part of the standard?  On required portions of the standard?  Optional portions?  Mandatory requirements on optional features?  Patents that I think, but am not sure that may read on a standard?  Ones where there is a remote, but non-zero possibility that it reads on a standard?  Ones where someone else has alleged it reads on a product that implements a standard?  Ones where a jury has determined that a product implementing the standard infringes on a patent?  Ones where the Federal Court of Appeals has upheld that a patent reads on a product that uses the standard?  Ones where the U.S. Supreme Court has affirmed the Federal Court of Appeals decision?

You can see how ridiculous the ISO requirement is.  IMHO, you could replace the ISO patent policy with a wall  poster with a big yellow smiley face  and the caption “Be careful!” with no essential loss of effect.  ISO seems to be living in a world where Rambus never happened.   Without solid obligations for ISO participants there are no corresponding strong rights for implementors.

(That’s my opinion.  Again, I am not a lawyer, so don’t take any of this as legal advice.  This is all my personal opinion and observation.  But, geez, look again at that patent policy.  Are they joking?  You should then look again at the OASIS disclosure requirements for a real world example of how a disclosure obligation must be phrased for it to have any teeth whatsoever.  What ISO has is more like a voluntary registration of reported patents.  That is not much of an assurance post-Rambus.)

The fundamental issue is that the membership of ISO consists of National Bodies, not individuals and not corporations.  So the formal members of ISO are not the patent owners.  This “committee of committees” approach puts a level of administrative indirection between those who have the knowledge and control of the IP and those who formally make the decisions.  It is an approach seemingly crafted to obfuscate accountability and disclaim  responsibility.

The other problem is that they have attempted to craft a single patent policy that applies to all standards from ISO, IEC and ITU, for everything from document formats to paper sizes, from quality processes to bolts, screws and studs, from shipping containers to medical devices.  The licensing and royalty practices of these diverse industries are equally diverse and any attempt to reduce them into a single rule will naturally lead to a lowest-common denominator statement of generalities.  And if you have 18000 standards, the lowest common denominator is rather useless, as we saw above.

Another issue is that ISO is fundamentally accepting and accommodating of RAND licensing.  There is no effective way for a committee to state the intent of developing an open standard, and then to maintain the pedigree and hygiene of the specification and process to assure a royalty free outcome.  There is no guarantee that contributions from other NBs will be RF.  There are no procedural protections against an NB who would seek to introduce patent encumbered material into the standard.  In fact, there is nothing to prevent a National Body or group of National Bodies from withholding their approval of a draft unless and until a specific desired RAND feature is added to the standard, perhaps to benefit a domestic rights owner.  This is all incompatible with the development of open standards.

What can be done?

So what are we to do?  ISO is obviously not going away, at least not quickly. But certainly for vast swaths of important,  widely-adopted standards work, ISO is simply irrelevant.  The web was built on open standards that were developed entirely outside of the ISO system, and in fact could only have been developed outside of that system.  Openness was key to their success.  So one approach for us is simply to ignore ISO wherever possible.  Certainly, do not promote procurement and policy initiates that exclusively favor ISO standards, since by doing so you eliminate from consideration the majority of relevant open standards that are available.  In other words, why grant ISO a monopoly on standards, especially when they seem constitutionally unsuited to the 21st century task of  creating timely, market-relevant open standards?

Another approach is for industry to make more aggressive use of the Publicly Available Specification (PAS) process, allowed in ISO/IEC JTC1, by which existing market-relevant industry standards can be turned into International Standards, largely unmodified, via an accelerated transposition procedure.  This allows the technical work to originate in an industry standards organization that understands the unique requirements of open standards and that can ensure relevant protections are in place to ensure the pedigree and hygiene of the IP in the standard.  Once the technical work is completed and review and consensus approval is achieved, the standard can then be transposed into an International Standard.    Some have criticized this as using ISO as a “rubber stamp”, that this process does not permit NBs to fully participate in the work of creating the standard.  But we must note that the PAS process is not intended as a standards development process.  It is not intended as a means for ISO NBs to participate directly in the development of the standard.  PAS is simply a transposition process, taking existing, relevant industry standards, and after a short review, giving them the imprimatur of an International Standard.   So yes, it is a rubber stamp of sorts, but one where ISO has two rubber stamps at hand, one saying “Yes” and one saying “No”.  Either can be used.

But in the end the problem isn’t the rubber stamp.  The problem is that ISO has no ability to develop open standards of their own, to enforce the member obligations that ensure the rights of users to freely implement the standard, and that ISO lacks open and transparent procedures, and that ISO clings to standards publication revenue model that puts their standards out of reach for many.

How Not to Read a Patent

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There is perhaps no occasion where one can observe such profound ignorance, coupled with reckless profligacy, as when a software patent is discussed on the web. Note the recurring pattern, which is repeated every two weeks or so. A patent issues, or a patent application is published or patent infringement suit is brought, and within minutes the web is full of instant pundits, telling us what the patent covers, how it should not have been granted, how it is entirely obvious, or how it applies to everything in the world, and how it presages a self-induced mutually assured destruction that now leads us on to the plains of Armageddon. If I had a nickel for every time this happens…

By way of disclaimer, I am not a lawyer, but I am blessed that my self-avowed ignorance in this area is coupled with a certain knowledge of the limits of my understanding, a handicap seemingly not shared by many other commentators. I know what I do not know, and know when to seek an expert.

In the past few days we have had a bumper crop of pontification on the significance of two XML-related patents, one newly issued to Microsoft (7,571,169), and another older one (5,787,449) owned by i4i, whose infringement has resulted in a large judgment and injunction against Microsoft. I’ve found the web coverage of both patents to be an unmitigated muddle.

I’m not going to comment on the merits of either one of these patents, but I’d like to make a few basic observations that may be of some assistance to those who comment on future patent issues.

  1. A patent has a description known as the “specification”. And it has a list of numbered “claims”. Although the specification can define terms that are then referred to in the claims, it is the granted claims that define the scope of the patent, not the specification.
  2. If all you do is read the abstract and the first few paragraphs of a patent, then you may know the general topic of the patent, but you do not really know its scope. If you then go off and cry, “Oi vey, this patent covers XHTML, SVG, RDF, Pringles and Obama Healthcare Plan” then you do your readers a disservice. You must parse the very specific and often obtuse language of the claims in order to understand exactly what a patent covers. There is no short cut. This is not like a book where you can understand the plot by reading the back cover. But over and over again, I see people who just read the abstract, maybe glanced at a diagram, and then feel equipped to hold forth at length on the substance of the patent.
  3. When you try to understand patent claims, you will encounter a dense form of legal English. Claims are not written for a layperson and do not presume that you will understand it easily. The drafting of patent claims is a black art, like writing device drivers, and if you are not versed in its intricacies, then your statements on any given patent are apt to be wide of the mark. Claims are full of magic words. Know what you do not know. If you do not recognize at sight and know the interpretation requirements of a means-plus-function claim (which is key in the ‘449 patent), or you are not crystal clear on the distinction between the verbs “consist” and “comprise”, then you probably should not be the first (or loudest) person to speak on what a patent claims.
  4. If you are reading an application, know that during the “prosecution” of that patent, when it is reviewed by the USPTO, some of the claims of the patent may be thrown out, for any of several reasons, including prior art identified by the examiners. However, the specification of the patent is unlikely to change much. So an issued patent often has a very broadly-written specification, that covers the entirety of the originally claimed invention, though the the issued patent might have only a subset of the original claims allowed. So if you are have an issued patent and you look at only the specification, you can easily be fooled into thinking it covers far more than it does. For example, the ‘169 patent from Microsoft had half the original claims thrown out in the prosecution. If you don’t know that and are reading only the specification, not the granted claims, then you will incorrectly think the patent is far broader than it actually is.
  5. Know what a priority date is, and how that is affected by a continuation. I’ve read all sorts of nonsense based on not appreciating that. Take a look at the ‘169 patent, for example. It says it was filed in 2004. But if you look closely you see it was a continuation of a 2002 application. You can moan and groan all you want about prior art, but if you don’t get your dates right you’re off to a bad start in your analysis.
  6. In an infringement suit, like with the ‘449 patent, be sure to look at the actual court record. Typically there is a Markman (claim construction) hearing, where the court will determine the meaning of terms used in the patent claims. If you have not read the court’s claims construction opinion in the i4i versus Microsoft case, then your commentary is uninformed by probably the most important document in this case (well, next to the patent itself).

Well, that’s enough for tonight. Repent. Sleep on it. And realize that making sense of a complex patent takes time, if you’re going to do it right. Ergo, the first impressions you read from the instant pundits on the web will tend to be shallow, imperfectly informed and often wrong. Heck, even everything I said in this post may be wrong.