In the previous draft dated 25/11/2009, our major objection was to section 4.1.2 of the policy which said,
"4.1.2 The essential patent claims necessary to implement the Identified Standard should preferably be available on a Royalty-Free (no payment and no restrictions) basis for the life time of the standard. However, if such Standards are not found feasible and in the wider public interest, then RF on Fair, Reasonable and Non Discriminatory terms and conditions (FRAND) or Reasonable and Non Discriminatory terms and conditions (RAND) could be considered."The comments I submitted on behalf of Red Hat reads:.
While the term “Mandatory Characteristics” indicates that section is binding, the usage of terms like “should preferably” conveys the impression that this is non-binding. Since thousands of government agencies, systems integrators and others connected with e-Governance will look up to this policy for guidance, we request that the mandatory characteristics should be laid out clearly and unambiguously. As with the previous section, we feel that the intent and will of the GoI should be clearly expressed in this section. In any case, Sections 4.3, 4.4 and
5 deal with the exceptions.
The term “essential patent claims,” is not defined in the policy and this could prove to be a huge loophole. This term is also a new introduction and it would have been helpful to know the rationale for its introduction. Ultimately, any patent necessary for the implementation of a standard is an “essential patent claim” because a
standard cannot be implemented partially. In this context, I would like to point out that the Chinese government has issued a notification for the compulsory licensing of patents related to standards used in China. An English translation of this notice is attached with this letter for your reference.
Recommendation: We request that the wording of this section should be changed to "ALL patent claims necessary to implement the Identified Standard should be available on a Royalty-Free (no payment and no restrictions) basis for the life time of the standard.” We also request that the following statement, “However, if such Standards are not found feasible and in the wider public interest, then Fair, Reasonable and Non Discriminatory terms and conditions (FRAND) or Reasonable and Non Discriminatory terms and conditions (RAND) could be considered,” be moved to the sections dealing with exceptions. We feel that this section is the heart of the Draft Policy and placing an exception statement in the very heart of the policy will send out wrong and conflicting signals.
As you can see from the extract below, the points mentioned above have
been incorporated In the recently finalized policy. This section now reads:
4.1.2 The Patent claims necessary to implement the Identified Standard
shall be made available on a Royalty-Free basis for the life time of the
Overall, I'd say this is a major victory for the Indian FOSS community
and more than three years of hard work have paid off. Now I need a loooooong break!