OSS and FRAND: Complementary Models for Innovation and Development

1 - Open Source Software: Definitions and History

Standard Setting Organizations and Standard Essential Patents: Voting and Markets

Downsides of Using Inadequate Open Source Software Processes and Licenses within Standard Development Organizations

After the initial grants of patents, contracts, industry customs and standards are adopted voluntarily by the market participants and they function as self-regulating or governing instruments to coordinate fragmentations caused by territorial rights. The activities of the standard-setting organizations (SSOs) that set standards for the use of the standard essential patents (SEPs) are one such example of self-regulation. Often, while the patent rights are local, SSOs are organizations often with multiple and heterogeneous participants. The guidelines and other soft law policies that SSOs voluntarily adopt are often likely to reflect such multi-territorial nature of SSOs’ participants. When a dispute arises on the conditions that are set by SSOs over the assertion of SEPs, the problem would be likely to include factual considerations that arise across territories. As such, disputes surrounding SEPs force local courts to consider not only local judicial standards and doctrines, but also those used elsewhere that may be relevant to understanding complex facts of disputes. This chapter discusses such tendency of the courts in the interpretation of a particular licensing principle of ‘fair, reasonable and non-discriminatory’ (FRAND) adopted by an European SSO, the European Telecommunications Standards Institute (ETSI), in Chinese courts. The chapter explores in detail the dispute surrounding SEPs between Huawei and InterDigital in China, and analyses it in the context of similar cases surrounding SEPs and FRANDs elsewhere. We argue that there seems to be a judicial globalization, where courts use of foreign-developed principles in judging local disputes with global commercial impacts, resulting from self-regulation, and that the Chinese court cases may be understood in the same vein. We conclude by arguing that this may be a next phase in the development of Chinese IP law, where the local practices of governance have to be built after the initial norms transplant.

The Move to the Middle: Convergence of the Open-Source and Proprietary Software Industries

Over the past decade, numerous computer-assisted retrosynthesis reaction prediction methods have been reported in the chemical literature, several of which are also shared as open-source code. Reports of integrating these modern open-source retrosynthetic prediction techniques into the chemical education classroom, however, is largely absent. This article describes our efforts to teach a computer-assisted retrosynthesis workshop series using open-source reaction prediction software and methods. In addition to three workshops on selected open-source reaction prediction methods, the series included workshops on Python programming and introductory cheminformatics using the RDKit cheminformatics toolkit. A pre and post survey was distributed to better understand participant familiarity and workshop outcomes. Participants indicated that they had minimal experience with cheminformatics, and open-source retrosynthesis software, however after the workshop series they indicated increased familiarity, interest, and desire to pursue additional training related to open-source retrosynthesis software and methods. We conclude this article with our experiences and ideas for future improvements. The workshop materials and code are available with an open source license, and educators are encouraged to adapt and improve the lessons (https://github.com/UA-Libraries-Research-Data-Services/retrosynthesis).

Open source software is becoming increasingly prominent, and the economic structure of open-source development is changing. In recent years, firms motivated by revenues from software services markets have become the primary contributors to open-source development. In this paper we study the role of services in open source software development and explore the choice between open source and proprietary software. Specifically, our economic model jointly analyzes the investment and pricing decisions of the originators of software and of subsequent open-source contributors. We find that if a contributor is efficient in software development, the originator should adopt an open-source strategy, allowing the contributor to offer higher total quality and capture the higher end of the market while the originator focuses on providing software services to lower end consumers. Conversely, if the contributor is not efficient in development, the originator should adopt a proprietary software development strategy, gaining revenue from software sales and squeezing the contributor out of the services market. In certain cases an increase in originator development efficiency can result in increased contributor profits. Finally, we find that, somewhat counterintuitively, an increase in contributor development efficiency can reduce overall social welfare.

Open-source software abbreviated as OSS is computer software that is available with source code and is provided under a software license that permits users to study, change, and improve the software. For the commercial software the source code and certain other rights are normally reserved for copyright holders,i.e. the company who developes the software. A group of people in a collaborative manner often developes the Open source software, not under the roof of a large organization. This strategy makes open source software cheap, reliable and modifiable if needed. In this context we shall discuss mainly the features of Open Source Software, differences of open source and free software and open source software movement in Indian perspective.

A lot misinformation and mystery surrounds the topic of Open Source software. The conceptual misunderstanding of software is fostered, in some respects, by a lack of understanding within the professional ranks of the computer field. There are many different views of Open Source software today, based upon ones perspective. After about 20 years of evolution, the position of Open Source in our economy still has not coalesced. Few seems to understand whether Open Source is free software for running a computer (i.e., Linux) or just a way to obtain some software products without giving Microsoft ones money. “There is one thing stronger than all the armies in the world and that is an idea whose time has come” - Victor Hugo any view Open Source (OS) software as just a free alternative to proprietary software. The term does not mean that there is no cost associated with its procurement, although some vendors do provide free versions. The word “free” usually means the freedom to copy, modify, or distribute the software. One must be very careful when applying this broad, general meaning to Open Source software. There are many different Open Source licenses in use and it is imperative that users acquaint themselves with the legal ramifications of dealing with intellectual property rights. ` Open Source software should be viewed as a viable alternative in many software selection processes. Recently, the news has portrayed the report of India's Kerala state moving to Linux and OpenOffice for its 2,724 high schools. Likewise, OpenOffice is replacing Microsoft Office in many schools districts around the US. With tight school budgets, school superintendents are realizing significant cost savings by using the OpenOffice products for their campuses. Products such as OpenOffice may not be 100% compatible with their current proprietary counterpart, but for many applications, compatibility is not the issue. The price and the software license management of proprietary packages may be overwhelming.

Tracing the Evolution of Standards and Standard-Setting Organizations in the ICT Era

Open Source vs. Proprietary Software: Competition and Compatibility

Contents: Introduction Inventing Life: Intellectual Property and the New Biology Alison McLennan and Matthew Rimmer PART I: A HISTORY OF BIODISCOVERY 1. Of Plants, Pills, and Patents: Circulating Knowledge Eva Hemmungs Wirten PART II: MEDICINE, BIOTECHNOLOGY, AND GENOMICS 2. Bilski v. Kappos and Biotechnology Patents: Back to the Future? Yann Joly and Francis Hemmings 3. The Current State of Patent Eligibility of Medical and Biotechnology Inventions in the United States Joshua D. Sarnoff 4. Patent Law, the Emerging Biotechnologies and the Role of Language in Subject Matter Expansionism Graham Dutfield PART III: BIOBANKS, BIOINFORMATICS AND BIOBRICKS 5. Standards for Biobank Access and Intellectual Property Dianne Nicol and Richard Gold 6. The 1000 Genomes Project Donna M. Gitter 7. Building with Biobricks: Constructing a Commons for Synthetic Biology Research Alison McLennan PART IV: GENETICS, STEM CELLS, AND NANOTECHNOLOGY 8. Regulating Gene Regulation: Patenting Small RNAs Adam Bostanci, Jane Calvert and Pierre-Benoit Joly 9. Stem Cell Patents: Looking for Serenity Amina Agovic 10. Cosmo, Cosmolino: Patent Law and Nanotechnology Alison McLennan and Matthew Rimmer PART V: BIODIVERSITY, FOOD SECURITY, AND CLIMATE CHANGE 11. Patenting The Kakadu Plum and the Marjarla Tree: Biodiscovery, Intellectual Property and Indigenous Knowledge Sarah Holcombe and Terri Janke 12. Climate-Ready Crops: Intellectual Property, Agriculture, and Climate Change Matthew Rimmer 13. The Doomsday Vault: Seed Banks, Food Security, and Climate Change Matthew Rimmer Bibliography Index

In this paper, we study oligopolistic competition between closed and open source softwares. By intersecting existing economic contributions on open source, we propose a two stage game with perfect information and product di¤eretiation in which producers firstly set softwares quality, then they determine prices (constrained at zero for open source programs). In doing this, we explicitly model lock-in e¤ects, network externality components of software quality as well as knowledge accumulation in software use and implementation. With respect to a monopolistic benchmark case, we argue that in duopoly a pro- prietary sofware producer facing an open source software will reduce its selling price whether: (i) its network of users is larger than open sources one and its consumers are largely experienced on its program, (ii) it has a small network of un-skilled consumers. In opposition, after open source softwares emergence, proprietary software price does augment if proprietary software users form a large, but poorly skilled network. Fur- thermore, we show that, in all above cases, proprietary software quality increases because of the existence of a open source alternative to a previouisly monopolistic program. Finally, by modeling knowledge accumulation processes through di¤erence equations, we show that the ratio between closed and open source programs opportunity costs of software learning and deployment plays a crucial role in shaping market outcomes. Until an open source software remains too complex and technical for unskilled or time-scarse users, a shared market solution in which both softwares are adopted is predicted. In contrast, if opportunity costs in learning and understanding open source programs are remarkably low, or at least equal to opportunity costs of a closed source software, then a open source dominance outcome (i.e. all software are open ones) phases out.

This paper investigates whether EU or national law provides legal authority to impose a direct or indirect obligation on Standard Essential Patent (“SEP”) holders to license at all levels of the value chain, including at component level (“license to all”, hereafter LTA). It concludes that neither patent law, competition law nor general principles of EU law impose an obligation on SEP owners to license at all levels of the production chain. Whether there exists an LTA obligation is primarily a matter of contract law and depends on the precise text of the FRAND commitment made to the relevant Standard-Setting Organisation (SSO). The ETSI FRAND commitment, which is of special relevance in the European context and is governed by French law, does not impose an LTA regime. With the exception of IEEE, other SSOs also do not seem to impose a contractual duty to license to all levels of the production chain. However, what EU law and FRAND commitments do require is access to the standard. Such access can be achieved in different ways: by having a direct license; by selling standard-implementing components to licensed end-device manufacturers (indirect license); by concluding non-assertion agreements; or even without any license or authorization at all if the SEP owner has a policy of monetising its SEPs only at one level of the production chain and does not enforce its patents against others.

Open source software (OSS) is computer software that has its underlying source code made available under a licence. This can allow developers and users to adapt and improve it (Raymond, 2001). Computer software can be broadly split into two development models: • Proprietary, or closed software, owned by a company or individual. Copies of the binary are made public; the source code is not usually made public. • Open-source software (OSS), where the source code is released with the binary. Users and developers can be licenced to use and modify the code, and to distribute any improvements they make. Both OSS and proprietary approaches allow companies to make a profit. Companies developing proprietary software make money by developing software and then selling licences to use the software. For example, Microsoft receives a payment for every copy of Windows sold with a personal computer. OSS companies make their money by providing services, such as advising clients on the GPL licence. The licencee can either charge a fee for this service or work free of charge. In practice, software companies often develop both types of software. OSS is developed by an ongoing, iterative process where people share the ideas expressed in the source code. The aim is that a large community of developers and users can contribute to the development of the code, check it for errors and bugs, and make the improved version available to others. Project management software is used to allow developers to keep track of the various versions. There are two main types of open-source licences (although there are many variants and subtypes developed by other companies): • Berkeley Software Distribution (BSD) Licence: This permits a licencee to “close” a version (by withholding the most recent modifications to the source code) and sell it as a proprietary product; • GNU General Public Licence (GNU, GPL, or GPL): Under this licence, licencees may not “close” versions. The licencee may modify, copy, and redistribute any derivative version, under the same GPL licence. The licencee can either charge a fee for this service or work free of charge. Free software first evolved during the 1970s but in the 1990s forked into two movements, namely free software and open source (Berry, 2004). Richard Stallman, an American software developer who believes that sharing source code and ideas is fundamental to freedom of speech, developed a free version of the widely used Unix operating system. The resulting GNU program was released under a specially created General Public Licence (GNU, GPL). This was designed to ensure that the source code would remain openly available to all. It was not intended to prevent commercial usage or distribution (Stallman, 2002). This approach was christened free software. In this context, free meant that anyone could modify the software. However, the term “free” was often misunderstood to mean no cost. Hence, during the 1990s, Eric Raymond and others proposed that open-source software was coined as a less contentious and more business-friendly term. This has become widely accepted within the software and business communities; however there are still arguments about the most appropriate term to use (Moody, 2002). The OSMs are usually organised into a network of individuals who work collaboratively on the Internet, developing major software projects that sometimes rival commercial software but are always committed to the production of quality alternatives to those produced by commercial companies (Raymond, 2001; Williams, 2002). Groups and individuals develop software to meet their own and others’ needs in a highly decentralised way, likened to a Bazaar (Raymond, 2001). These groups often make substantive value claims to support their projects and foster an ethic of community, collaboration, deliberation, and intellectual freedom. In addition, it is argued by Lessig (1999) that the FLOSS community can offer an inspiration in their commitment to transparency in their products and their ability to open up governmental regulation and control through free/libre and open source code.