Patents have long served to enable innovation while assuring the complete disclosure of inventions and a reasonable return to inventors. Many open standards incorporate patented inventions. To ensure public access to IP in open standards, governments and industry have supported an equal rights provision: reasonable and non-discriminatory (RAND) licensing for patents included in standards. But for some, equality is insufficient. Some in the OSS community want to do away with these royalties (or any other RAND based licensing terms, such as scope of use or prohibitions on sublicensing) all together.
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Reflections on the nature of the problem for the economy caused by the potential tension between standards with IPRs and OSS

This article is co-authored by Anne Layne-Farrar and Daniel Garcia-Swartz (bio Here)

As fellow commenter Stacy Baird notes in his contribution to today’s discussion, all open source licenses are not created equal – hard line licenses, like the GPL, place more restrictions on users and thus create tensions with RAND/FRAND that don’t otherwise exist. Indeed, open source and IPR protected software frequently coexist quite peaceably.
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Proponents of open source software are a creative bunch. Their flexible, open and collaborative way of working has certainly led to innovation not only in software development but also in the way that we now view many aspects of public policy.

On the positive side, the understanding of open source principles and ways of working has motivated us all to be more transparent, more open to creative partnerships and to place a premium on innovation as a public good.
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Both open standards and open source are related but evolving. Given recent events, we could even say that Open source is maturing. Today, rather than considering the dichotomy between open source and proprietary software; we are now evaluating specific open source licenses, how they work with various business goals and how they will play out in the future.

In many ways, our forum topic this month addresses that issue. Stacy says: The answer lies in licenses: not the patent licenses, but certain open source software licenses. James says: Demands for royalties are becoming rarer, in our own domain.
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Many discussions around the interplay between Open Source Software (OSS) licensing and Reasonable and Non-Discriminatory (RAND) licensing of essential patent claims immediately jump to the question of patent royalties. To the lay person, it might appear a simple debate: patent royalties in RAND regimes are the basis of tension between RAND and “Open Source.” Peering deeper into the issues, however, reveals that neither RAND nor OSS are singular or uniform concepts capable of such a simple comparison as this. Moreover, lost in the complexity of the purely legal analysis are a range of important policy questions (some of which I have tried to set out below).
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