Are Patents on Interfaces Impeding Interoperability?

Citation: Pamela Samuelson (2009) Are Patents on Interfaces Impeding Interoperability?. Minnesota Law Review (RSS)
Internet Archive Scholar (search for fulltext): Are Patents on Interfaces Impeding Interoperability?
Download: http://ssrn.com/abstract=1323838
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Summary

Makes 4 points:

1. "there is less need for strong regulatory measures, such as barring patents on interface innovations or treating the exercise of interface patents to block interoperability as misuse of the patents,than some commentators seem to believe."
2. "insofar as interface patentsdo emerge as more serious impediments to interoperability than they have beento date, there are adequate policy responses in place in various countries that can be used to address them"
3. "some tailoring of patent rules and patent reforms may be advisable in order to promote greater interoperability among ICT systems"
4. "patents are often less of an impediment to interoperability than the secrecy of interface information, which may be difficult or impossible to reverse engineer, and changes in interfaces that may attend new versions or features of an ICT system...it would be difficult to bring about more interoperability by mandating greater disclosure of inter-face information or regulating what kinds of changes firms can make to their interfaces."

"Interoperability among information and communications technologies (ICT) is widely believed to promote socially desirable goals, such as fostering competition and innovation, enhancing consumer satisfaction, and promoting economic growth."

"comprehensive analysis of the twenty-some policy responses that have thus far been proposed or implemented to blunt the power of interface patents" in 4 categories:

1. Banning Patents on Interfaces or Immunizing Their Use
2. Adjusting Patent Policy Levers Affecting Interoperability and Other Patent Reforms
3. Employing Liability Rules for Use of Interface Patents
4. Invoking Competition and Antitrust Law to Facilitate Interoperability
5. Promoting Private Ordering as to Interface Patents

Market forces (even in face of IP) have created lots of interoperability.

But interface patents can inhibit interoperability, and could more in the future.

Impact on open source:

"Some anecdotal evidence exists as to open source software projects that did not go forward because of interface patents. Yet, even open source projects have been able to implement some patented interfaces. Samba and Microsoft, for example, were able to reach an agreement on Samba’s use of certain network communications protocols. (It is fair to observe that Microsoft’s willingness to license these protocols to Samba on GPL-friendly terms was due in large part to the Commission’s oversight of Microsoft’s interface licensing practices.) It is a fair inference that organizations, such as W3C, OASIS, and METI, would not have undertaken their policy initiatives to blunt the exclusionary potency of interface patents if these organizations thought such patents would never or only rarely present impediments to interoperability."

Discusses mandating interface disclosure, said to be fraught, eg hard to determine what disclosure is necessary for interoperability, and full disclosure could undermine incentives.