The Open GIS Consortium has announced the adoption of a revised IPR policy which requires all contributors to license technology on a royalty-free basis. OGC is an international industry consortium of 257 companies, government agencies, and universities participating in a consensus process to develop publicly available geo-processing specifications based upon XML. The OGC's revised IPR policy "takes into account the significant patent policy work undertaken at the W3C, which has emerged as the consortium leader in establishing a pragmatic way to successfully develop royalty-free Web Standards in the current patent environment. The result reflects agreement with the basic goal to preserve a free and open standards-based information infrastructure. At the same time, the new IPR policy respects the patent rights of member organizations and the value their patents represent." OGC members support the IPR policy "because there is a belief that OpenGIS specifications must be royalty free and unencumbered by patents, and therefore freely available to any party — buyer, commercial developer, government agency, or open source developer -- that wants to implement OpenGIS Specifications in their enterprise." The OGC's revised IPR policy will take effect on July 05, 2003.

From the OGC Announcement

The Open GIS Consortium, Inc. (OGC) announced that its Board of Directors voted on May 27, 2003 to reaffirm OGC's intellectual property rights (IPR) policy. OGC's IPR policy is designed to protect the Consortium's standards framework from patents that would impede development of open infrastructure for interoperable geoprocessing. These policies, under review for the last year in OGC, are very similar to those adopted last month by the World Wide Web Consortium (W3C).

"Our members support our IPR policy because there is a belief that OpenGIS specifications must be royalty free and unencumbered by patents, and therefore freely available to any party - buyer, commercial developer, government agency, or open source developer - that wants to implement OpenGIS Specifications in their enterprise", explained David Schell, OGC President. "The net result is that our market can grow, more organizations can benefit from our work, and ultimately buyers will have greater choice at less risk."

OGC's IPR policy works to: (1) ensure that OpenGIS specifications are unencumbered; (2) protect the IPR rights of each of its members; (3) make OGC IPR policy clear and available to both members and non-members; (4) anchor OGC IPR procedures firmly in the mainstream of current standard-setting 'best practices.'

OGC's IPR policy is the responsibility of its Board of Directors and the policy has represented the consortium's philosophy and practice since OGC's inception. A number of OGC members with diverse opinions and policies related to IPR have worked with OGC staff to refine the written policy since it was originally published. It also takes into account the significant patent policy work undertaken at the W3C, which has emerged as the consortium leader in establishing a pragmatic way to successfully develop royalty-free Web Standards in the current patent environment. The result reflects agreement with the basic goal to preserve a free and open standards-based information infrastructure. At the same time, the new IPR policy respects the patent rights of member organizations and the value their patents represent.

"We are pleased to be able to reinforce the profoundly important statement made by the W3C in defense of the unencumbered use of open, publicly available standards specifications. Without royalty free, publicly available standards, competition is dangerously inhibited," Schell continued. "Further, if a standard is not royalty free, then any one party can effectively impose a tax on fundamental components of the of critical public infrastructure. It is our belief that the greatest benefit of technological innovation is achieved through open, unencumbered competition."

From the OGC IPR FAQ Document

Q: What rights does OGC ask for from contributors? A. Like all other consortia, OGC will only accept technology that may be made available to Members and non-Members on terms that are 'reasonable and non-discriminatory' (or 'RAND' terms, as they are usually referred to). OGC also requires all contributors to license on a royalty-free basis, in order to make the implementation of OGC specifications as easy as possible.

Q. If I join OGC, would I be required to license my IPR? A. No. OGC does not require Members to license, but also does not wish to knowingly adopt a specification that a Member could block from implementation. As a result, before finally adopting a specification, it asks each OGC Member that is entitled to vote to state whether it will make needed license rights available to all implementers to the extent that an implementation of an OGC specification would necessarily result in the infringement of any IPR owned by that Member. The Member must respond, stating whether it will or will not make such license rights available. All such licenses must be on a RAND basis.

Extracts from the OGC Intellectual Property Rights Policy Overview

[For context, please see the full text of the OGC Overview of Intellectual Property Policy — Process and Implementation.]

Submission Process: "Under the Bylaws of Open GIS Consortium, Inc., only a Voting Member may submit technology and therefore be a 'Submitter.' At the time of submission, Submitters must assure that the IPR inherent in their submission will, if the submission is incorporated into an approved specification, be made available under license to all implementers, Members and non-Members alike.

"The Submitter must state that if its submission is adopted and incorporated into a final specification, that it shall make such license(s) available without a royalty or other fee and shall also make such license available on 'reasonable and non-discriminatory ('RAND') terms.' Such license(s) need apply only with respect to IPR rights that would be necessarily infringed by the implementation of the required elements of a final specification."

"'Reasonable' in this context means in keeping with general industry practices, so that adoption of an approved specification will not be impeded by unduly restrictive or extortionate terms. 'Non-discriminatory' means that all who wish to implement the specification must be provided with a license, and that the terms of that license will be reasonably uniform across all licensees, after taking into account relevant differences in circumstances..."

Consideration Process: "As is the case with other consortia, OGC believes that during the consideration process, it is fair and appropriate for Members to state whether they will provide a license to those wishing to implement a specification under review, if it is adopted. This license would only apply to IPR that would necessarily be infringed by an implementation of the specification in its final form, can be made available with or without cost, and must be on RAND terms."

"Therefore, during the consideration process, Members have the options to identify the infringement that the Member believes would result from implementing the specification and state that it does not agree to provide a license, that it will provide a license for a royalty or other fee, or that it will make a license available without a royalty or other fee..."

"The options not to license or to provide a license for a royalty or other fee are available to non-submitting Members so that Members become fully informed of infringement and / or licensing issues early in the process. Thus, a submission by one Member cannot compel another Member to give up commercially valuable rights purely as a result of its participation in the adoption process."

"This requirement for IPR owners to identify potential IPR infringement early in the consideration process will often permit the Technical Committee and/or Working Group to design solutions around the claimed IPR..."

License Process: "When a specification has been adopted, it is time for any Submitters and Members with affected IPR to provide the promised rights to their IPR. Those rights can be provided in one of two ways: (1) The first method is by outright conveyance, in which case outright title passes to OGC. If desired, the conveyor may retain a perpetual, fully paid, irrevocable license to the contributed IPR. The Bill of Sale and Conveyance document used to make this technology transfer will be negotiated between OGC and the Submitter at the time of transfer. (2) The second method involves the granting of one of two types of license. The first gives OGC the right not only to publish the specification at its website and elsewhere, but also to sublicense implementation rights as well..."

In both cases, all patent rights remain with the owner. OGC, however, is given ownership of the copyright in the specification itself, as well as the right to make derivative works. And in the case of both an outright transfer of ownership to OGC as well as with either type of license, the Submitter is permitted to disclaim any warranty of non-infringement or performance. The Submitter is requested, however, to state to the best of its knowledge any infringement issues known to it..."

Implementation Process: "If an implementer is permitted the right to obtain necessary license rights at the OGC website, it is required to click on an Implementer License in the form of Exhibit D. This 'click through' license, among other things, disclaims any liability to the implementer for infringement or performance issues..."