UK’s Promotion of Royalty-Free Government Procurement Standards - NOT AS REPORTED

http://www.mondaq.com/article.asp?articleid=129510

United Kingdom: UK’s Promotion of Royalty-Free Government Procurement Standards Not as Reported

April 14, 2011

By Lawrence A. Kogan

FOSS pundits have made much ballyhoo of the recent Procurement Policy Action Note issued by the UK Cabinet Office of Government Commerce (OGC) during January 2011 that defines 'open standards' as including only those which "have intellectual property made irrevocably available on a royalty-free basis" (emphasis added).¹

As an example, U.S. attorney Andy Updegrove, author of one recent article on the subject entitled,United Kingdom: U.K. Comes out for Royalty-Free Standards for Government Procurement,² waxed poetically about the UK government document's noteworthiness. To paraphrase the author's four main points, the UK government Procurement Policy Note is noteworthy because: 1) it includes informal regional as well as national standards consortia among the internationally recognized specification or standards organizations whose 'open' standards can and should be considered by the UK for government procurement purposes;2) its definition of 'open' standards constitutes a legally acceptable "repudiation" (allegedly consistent with the policy space afforded EU Member State governments vis-à-vis the European regional lawmaking institutions) of and permissible derogation from the final, binding European Interoperability Framework adopted by the European Commission during December 2010, following many years of thoughtful deliberation and contentious debate;3) it emulates and embraces a robust definition of 'open' standards that is very similar to that contained within the national interoperability framework adopted during November 2010 by the Indian Government; and 4) it proves that corporate lobbying and forum shopping undertaken at the EU Member State governmental level on behalf of the 'penguin' (open source) and 'software-as-a-service' (SaaS) industry communities can be successful, at least temporarily.

A closer examination of the UK Procurement Policy Action Note reveals that its ostensible noteworthiness and the author's observations relating to the legal and policy issues surrounding it are more nuanced than they have been depicted...

ITSSD Issues New Report Detailing How Foreign Government Regulatory and Standards Initiatives Seek to Convert Privately Developed Intellectual Property-Rich High Technologies into Virtually Free-of-Charge 'Public Interest' Assets Mostly at the Expense of U.S. Innovators and Investors

http://www.prnewswire.com/news-releases/itssd-us-high-tech-innovations-face-gathering-perfect-storm-of-compulsory-licensing-and-royalty-free-interoperability-frameworks-abroad-111988199.html


ITSSD: U.S. High-Tech Innovations Face Gathering 'Perfect Storm' of Compulsory Licensing and Royalty-Free Interoperability Frameworks Abroad

PRINCETON, N.J., Dec. 16, 2010 /PRNewswire-USNewswire/ -- In the Washington Legal Foundation Working Paper published today and in the Global Trade & Customs Journal article to be released in February 2011, international business and regulatory attorney Lawrence Kogan identifies and describes the growing number of foreign regulatory frameworks and national standards initiatives designed to convert privately developed intellectual property-rich high technologies into virtually free-of-charge 'public interest' assets mostly at the expense of U.S. innovators and investors.

These articles are based on Mr. Kogan's continuing involvement in the work of the World Intellectual Property Organization Standing Committee on the Law of Patents and a related event he recently convened on this subject while attending the body's 15th session meetings during October 2010 in Geneva, Switzerland.

According to Mr. Kogan, "such market intervention mechanisms are grounded in United Nations human rights, technology transfer and wealth redistribution soft law declarations and ambiguous UN environmental and World Trade Organization treaty provisions that have already begun to weaken the prevailing neo-liberal exclusive private property right basis for patents, trade secrets and copyrights which has long provided an invaluable incentive for undertaking high-risk technological research & development, innovation and commercialization activities. 'BRIC' nations, in particular, seek to replace the current international system with a state-centric utilitarian regulatory model that guarantees to their public constituents universal access to U.S. high technologies at pre-determined concession-rate prices," emphasizes Kogan. "However, the European Union, for economic competitiveness and trade protectionist reasons, is also involved."

"Capital-intensive technology development and commercialization already engenders significant economic and legal risks and other uncertainties.  Given the precarious state of today's global economy, it simply defies logic and common sense that governments and civil society organizations would seek to create additional regulatory and policy risks capable of stifling discoveries and innovations that could lead to the job creation, knowledge dissemination and other downstream public benefits they desire," Kogan believes.

"Consequently, it would be unwise for the U.S. innovator and investment communities to be lulled into a false sense of security by U.S. and foreign government assurances that these frameworks are narrowly focused and applicable only in a limited number of instances," warns Kogan. "Much to the contrary, compulsory licensing and government procurement interoperability regimes are quite broad and expansive, applying to a number of technology industry sectors including, but not limited to, software, broadband, healthcare, energy, transportation, education, emergency and disaster management, and defense/national security. Thus, competent counsel should be retained as soon as possible to identify possible public and private law opportunities to mitigate such risks."

The Institute for Trade, Standards and Sustainable Development (ITSSD) is a non-partisan non-profit legal research, analytics and educational organization that examines international law relating to trade, industry and positive sustainable development. The WLF article is accessible at: http://itssd.org/KoganWP.pdf and http://www.wlf.org/0misc/KoganWP.pdf  , and the GTCJ article Abstract at:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1721267.

Website:  www.itssd.org

CONTACT: ITSSD, +1-609-658-7417, info@itssd.org

SOURCE Institute for Trade, Standards, and Sustainable Development

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