Consider that ‘EIFv2′ and ‘Guidelines for the Assessment of Horizontal Cooperation Agreements’ are codes and guidelines for types of standards processes that a government entity might find acceptable or reasonable for some purpose. In that respect these two share several common criteria.
Now consider similar codes and guidelines from countries such as the United States’ OMB A -119 Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities [1] and from International organizations such as the World Trade Organization Decision on Principles for the Development of International Standards [2].
These four documents share common criteria. Strategic and practical country by country, regional and international quandaries confront businesses and standards developers related to these. The table below selects and compares four common criteria from the four examples above.
The tables below illustrate that any participant in global standards setting such as a company or a standards developing organization with global reach must tread carefully and be wary that while criteria within such codes sound similar the meanings are nowhere near equivalent. Of course different government purposes lead to different criteria details. And there may be geographical or social dimensions to contemplate. However in today’s global marketplace there are very many such codes and guidelines vying for market relevance. It would be easy to justify adding country and international columns to the table for example for India’s Policy on Open Standards for e-Governance [3] and for Article X Technical Specifications and Tender Documentation [4] from the 2006 Revision of the Agreement on Government Procurement.
It is noteworthy the cell at the intersection of the “International” column and the “Intellectual Property” row is blank. I am aware of just one rarely used “International” Code of Good practice for Standardization ISO/IEC Guide 59 containing text addressing patents in standards:
Clause 5.8 Standards should not be drafted in terms that include the use of a patented item unless the use of such item is justifiable for technical reasons and the rights holder agrees to negotiate licenses with interested applicants wherever located on reasonable terms and conditions. [5]
Just now in the US, NIST on behalf of the National Science and Technology Council’s Sub-Committee on Standards, has requested public input [6] how Federal agencies should consider their future engagement in standards development and conformity. The deadline for comment to NIST is March 7.
I will respond to the NIST notice about the potential positive impact of greater regional and international coherence in these matters.
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EIF v2
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| Membership and access to development . |
All stakeholders have the same possibility of contributing to the development of the specification . |
| Public Review . |
public review is part of the decision-making process . |
| Availability of standards in development and once published on reasonable terms . |
The specification is available for everybody to study . |
| Intellectual property available on a non-discriminatory, royalty-free or reasonable royalty basis to all interested parties (RAND) |
Intellectual property rights related to the specification are licensed on FRAND [FN] terms or on a royalty-free basis in a way that allows implementation in both proprietary and open source software[FN]. |
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EU Horizontal Guidelines
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| Membership and access to development . |
Where participation in standard-setting is unrestricted (Para 280) In particular, to ensure unrestricted participation the rules of the standard-setting organisation would need to guarantee that all competitors in the market or markets affected by the standard can participate in the process leading to the selection of the standard. (Para 281) . |
| Public Review . |
With respect to transparency, the relevant standard-setting organisation would need to have procedures which allow stakeholders to effectively inform themselves of upcoming, on-going and finalised standardisation work in good time at each stage of the development of the standard. (Para 282) . |
| Availability of standards in development and once published on reasonable terms . |
Furthermore, the standard-setting organisation’s rules would need to ensure effective access to the standard on fair, reasonable and non discriminatory terms ( 1 ). (Para 283) . |
| Intellectual property available on a non-discriminatory, royalty-free or reasonable royalty basis to all interested parties (RAND) |
In order to ensure effective access to the standard, the IPR policy would need to require participants wishing to have their IPR included in the standard to provide an irrevocable commitment in writing to offer to license their essential IPR to all third parties on fair, reasonable and non-discriminatory terms (‘FRAND commitment’) (Para 285) Moreover, the IPR policy would need to require good faith disclosure, by participants, of their IPR that might be essential for the implementation of the standard under development. (Para 286) |
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US (OMB A -119)
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| Membership and access to development . |
A voluntary consensus standards body is defined by the following attributes: (i) Openness. (ii) Balance of interest. (iii) Due process. (vi) An appeals process . |
| Public Review . |
v) Consensus, which is defined as general agreement, but not necessarily unanimity, and includes a process for attempting to resolve objections by interested parties, as long as all comments have been fairly considered, each objector is advised of the disposition of his or her objection(s) and the reasons why, and the consensus body members are given an opportunity to change their votes after reviewing the comments. . |
| Availability of standards in development and once published on reasonable terms . |
If a voluntary standard is used and published in an agency document, your agency must observe and protect the rights of the copyright holder and any other similar obligations . |
| Intellectual property available on a non-discriminatory, royalty-free or reasonable royalty basis to all interested parties (RAND) |
These standards include provisions requiring that owners of relevant intellectual property have agreed to make that intellectual property available on a non-discriminatory, royalty-free or reasonable royalty basis to all interested parties |
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International (WTO)
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| Membership and access to development . |
Membership of an international standardizing body should be open on a non-discriminatory basis to relevant bodies of at least all WTO Members. This would include openness without discrimination with respect to the participation at the policy development level and at every stage of standards development (Para 6) All relevant bodies of WTO Members should be provided with meaningful opportunities to contribute to the elaboration of an international standard so that the standard development process will not give privilege to, or favour the interests of, a particular supplier/s, (Para 8) . |
| Public Review . |
. |
| Availability of standards in development and once published on reasonable terms . |
All essential information regarding current work programmes, as well as on proposals for standards, guides and recommendations under consideration and on the final results should be made easily accessible to at least all interested parties in the territories of at least all WTO Members. (Para 3) Impartiality should be accorded throughout all the standards development process with respect to, among other things: (g) fees charged for documents; (Para 9) . |
| Intellectual property available on a non-discriminatory, royalty-free or reasonable royalty basis to all interested parties (RAND) |
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[1] http://www.whitehouse.gov/omb/circulars_a119/ [directing agencies to use voluntary consensus standards in lieu of government-unique standards and then defining criteria for such “consensus standards”]
[2] http://www.gtwassociates.com/answers/TBTPrinciples.htm [ defining the principles and procedures should be observed, when international standards, guides and recommendations (as mentioned under Articles 2, 5 and Annex 3 of the TBT Agreement for the preparation of mandatory technical regulations, conformity assessment procedures and voluntary standards) are elaborated]
[3] http://egovstandards.gov.in/approved-standards/egscontent.2010-11-12.9124322046/at_download/file
[4] GPA/W/297 http://www.gtwassociates.com/answers/agpPrinciples.htm
[5] Excerpt ISO/IEC Guide 59 code of good practice for standardization http://www.gtwassociates.com/answers/Guide59.Excerptspdf.pdf
[6] A Notice by the National Institute of Standards and Technology on 12/08/2010
