Yesterday's post took an example from DICOM to describe how the uses of an existing standard can be patented. A standard, even if it is a free and open standard, has little value if the intended uses of the standard are encumbered by patents. This would mean, in effect, that the user community must license the standard for uses that are covered by patents (or risk infringeing on one or more patents).
What can SDOs (Standards Development Organizations) do to prevent this problem? I am not a lawyer, and cannot give legal advice, but I would suggest that the following approach is sensible:
When the standard is being developed, the SDO should think about all the intended uses for the standard and publish a document (as an SDO white paper or as a journal publication) that describes, in detail, the ways that the standard can be used, supplying source code, instructions, sample implementations, user commentary, citations to relevant publications in the field, etc. This would help create prior art for the described uses of the patent. When the SDO provides public documentation for the common, expected uses of the standard, it would make it difficult for someone to come along and claim the those methods in a patent.
Also, SDOs should be prepared to work with their Patent Office to explain how patent applications related to their standard may be preceded by scientific art or may provide no new or non-obvious functionality to the standard. As described in an earlier post, the USPTO recognizes that software patents are a difficult area and has a program to seek guidance from the software community.
Suppose an inventor conceives of a totally new use of an existing standard and develops a patentable process or application for this new use. How would an SDO defend the standard in this case. Well, there might not be any defense. After all, if someone really comes up with a novel use for a standard that has a real-world application, why shouldn't their intellectual property be covered by a patent? The problem for SDOs comes from patents that cover customary, expected uses of a patent. SDOs with nothing in place to protect the basic uses of the standard have not done their job very well.
My book, Principles of Big Data: Preparing, Sharing, and Analyzing Complex Information was published in 2013 by Morgan Kaufmann.
I urge you to explore my book. Google books has prepared a generous preview of the book contents. If you like the book, please request your librarian to purchase a copy of this book for your library or reading room.
tags: big data, metadata, data preparation, data analytics, data repurposing, datamining, data mining