EC probes telecoms 'patent ambush' flaw

The European Commission is investigating Europe's main telecoms standard-setting body due to concerns that a flaw in its procedures could allow companies to carry out a 'patent ambush'.

A spokesman for the EC's competition commissioner told ZDNet that it is investigating the European Telecommunications Standards Institute (ETSI), an independent organisation that sets standards in Europe, to ensure its procedures do not allow anti-competitive behaviour.

"We have an ongoing investigation. The issue we're looking at is the standards setting procedures at ETSI and the transparency of its procedures. The concern we have is a lack of transparency could lead to patent ambush situations."

A patent ambush involves a company withholding information about patents held around a proposed standard. If this standard is agreed, companies are forced to pay royalties to the holder of the patent if they wish to implement the standard.

The EC spokesman said ETSI must make sure information about patents surrounding a proposed standard are freely available. "It should be clear that a particular technology is covered by a patent before a standard is set, so this can be taken into account when deciding whether to set the standard," said the spokesman.

An ETSI spokesman said it was aware of the issue and is working to resolve it. "We are working closely with the [EC] and the members of ETSI to ensure our IPR [intellectual property] policy remains fair and reasonable."

ETSI has policy information on its website and companies must register their patents online before standardisation starts, according to the spokesman. He said it can be difficult to find a compromise between setting standards and allowing companies to protect their intellectual property. "The dilemma we have is how do you set standards and allow companies to protect their investment," said the spokesman.

Some in the technology industry are concerned that patents could inhibit the use of standards. It can be difficult for SMEs to develop technologies around a standard that requires the payment of patent royalties. Open source developers are unable to use any standards that involve royalty-bearing patented technologies as they do not sell licences to the software they write.

Dirk Willem von Gulik, the president of the Apache Software Foundation, which supports a number of open source projects, said last month that it investigates standards involving patented technologies before deciding whether to adopt them. "We need to work out which standard to use, as a lot of 'open standards' are not that open," said von Gulik in a talk at the Holland Open Software Conference.

Some standards bodies, such as the World Wide Web Consortium (W3C), have already set patent policies that ban the use of royalty-bearing technology in their standards. Other standards bodies, such as OASIS, have been put under pressure to change their patent policy so that only patents with a royalty-free licence can be used in a standard.

Ingrid Marson writes for ZDNet UK