[beyond-licensing] Responding to FRAND

[Karl Fogel]

"Michael Dolan" <email at michaeldolan.com> writes:
>I'm also concerned about the FRAND approaches I'm seeing. In
>particular FRAND standards bodies are attempting to release "open
>source" codebases that implement the necessary elements of the FRAND
>encumbered standard. It seems most prevalent to me in Europe right
>now, though I honestly do not understand why. I can understand open
>source projects have implemented standards (or portions thereof) for
>decades, however, their activity as separate from the standards
>creation entity gives them freedom of implementation (e.g. to work
>around any patents or not implement that patented portion). This new
>model I'm seeing is more concerning b/c the open source project is
>governed by the standards body and the scope of the project is
>explicitly tied to a particular FRAND implementation requirement.

Worse than that, because it is an example of code released under an open source license being used explicitly to demonstrate a patented technique, it therefore chips away at the "implicit grant" theory -- held by some although untested in court AFAIK -- that releasing code under an open source license means that the licensor (and maybe even a redistributor) is implicitly granting sufficient patent rights to use the code in ways compatible with the open source license.

Since this would be open source code whose purpose is the opposite, by definition it could not contain such an implied patent grant; I'm worried it could thus weaken that same claim when made about other open source works.  (Not that I know how strong that claim is in the first place.)