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IPR issues threaten open standards' future

Posted: 01 May 2007 ?? ?Print Version ?Bookmark and Share

Keywords:intellectual property rights? DVB-MHP? DVB-H mobile-TV standard?

Laven: Patent holders 'got greedy.'

A Java-based API designed to bring interactivity to DTV broadcasts and STBs is being proclaimed dead-on-arrival in Europe, a casualty of mishandled procedures for disclosing intellectual property rights (IPR) related to the standard.

The broadcaster backlash against the IPR terms for the Digital Video Broadcast Multimedia Home Platform (DVB-MHP) could signal deeper problems for its creator, the Digital Video Broadcasting Project, as that consortium positions its open DVB-Handheld (DVB-H) mobile-TV standard against Qualcomm Inc.'s proprietary MediaFLO. That has some calling for an overhaul of the DVB Project's IPR policy!and others questioning whether the industry's rising preoccupation with IP protection may prove irreconcilable with the concept of open standards.

MHP's patent-pooling negotiators certainly had time to get it right; the DVB Project completed the technical specs for the standard seven years ago. But the final IPR terms and conditions were not made available until February, and the hefty price tag!$1.75 per MHP device and 25 cents per subscriber per year!prompted outcries. The likely upshot is that the detailed MHP specs, reflecting the work of literally hundreds of engineers, will be mothballed.

"The patent holders got greedy to the point that they killed MHP," said Philip Laven, technical director of the European Broadcasting Union (EBU). Many broadcasters in Europe are now saying they will "punish" MHP patent holders by not implementing it. The exception may be Italy, where the government has mandated MHP's use and the installed base of MHP STBs already numbers in the millions.

Because DVB-MHP is a delivery mechanism for supplementary services rather than a core broadcast technology, there has been little gnashing of teeth over the failed spec itself. What's more worrisome for many in the industry is whether the MHP tempest will have implications for the mobile TV turf war between DVB-H and MediaFLO.

No immunity
At a time when Qualcomm is said to be promising "written indemnification" for MediaFLO licensees, the IPR structure for DVB-H has yet to come together. Those planning to implement DVB-H today don't know how much it will cost them or when patent pooling will become available. And in light of the DVB-MHP fiasco, DVB Project members are forewarned that the consortium may offer no immunity against patent ambushes by IP owners either outside or inside the group.

At the DVB World forum in Dublin last March, EBU's Laven posed a question that went to the heart of the matter: "Is there a future for open standards?"

Such a question would have been "unthinkable" just two years ago in a cordial, technologist-friendly forum like DVB, Laven said. DVB's engineering members value the economies of scale made possible by open standards, and they look to "avoid lock-in to monopoly supplies of proprietary systems," he said.

Although the DVB Project stipulates that IPRs should become available within two years after the completion of a standard, DVB-MHP miserably failed to meet that requirement. After the successful adoption of many of the DTV standards engineered by the DVB Project, DVB-MHP "disrupted the trust" among the consortium's membership of broadcasters, technology companies and network operators, said Laven. There is a future for open standards, he said, but "only if they are implemented and followed through."

DVB Project chairman Theo Peek acknowledged MHP's problems. MHP's patent-pooling procedure, he said, was not "directly in line with the original mission of DVB, which is to provide the best technical solution to commercial guidelines, regardless of IP issues."

Negative disclosure
Peek spoke to the crux of the issue. DVB Project members assume that its technologists can focus on selecting the best available technologies, without involving lawyers in every step of a spec's development, because they are shielded by the "negative disclosure" clause in DVB's memorandum of understanding.

Negative disclosure means one of two things: A member can stay silent on an issue because it has no relevant patents, or the member agrees to provide its IPR to the spec on a "fair, reasonable, non-discriminatory" basis. Thus, during spec development, DVB members can take a passive approach to IPR disclosure.

Most standards-setting organizations, however, require positive IPR disclosure, which mandates up-front declarations of all relevant patents. The European Telecommunications Standards Institute (ETSI), to which completed DVB Project technical specs are typically submitted for standards approval, is one such organization. In the case of MHP, the DVB Project had been so intent on negotiating with Sun Microsystems on the use of Java that "several reputable companies willfully ignored the spirit of ETSI's IPR policy" by staying silent on their own IPRs, Laven said. And neither group had the means to force IPR disclosure.

The debate now among DVB Project members is whether the group needs to overhaul its IPR policy. Not everyone is ready to make that leap.

Host of factors
Carter Eltzroth, legal director of the DVB Project Office, noted that a host of factors had contributed to the long IPR delay for DVB-MHP. First, he said, the group spent more than two years negotiating with Sun. Second, the firm that was originally asked to organize the MHP patent pool suddenly withdrew from the business. "We lost a year right there," said Eltzroth.

Third was the complexity of the MHP spec itself; the DVB group needed considerable time just to define the MHP mandate. Development of the extensive reference materials delayed the process.

Furthermore, Eltzroth said, MHP patent holders gave priority to the U.S. CableLabs' OpenCable Applications Platform, which uses MHP's underlying technology. But while CableLabs represents a single, unified market in the U.S., implementing MHP in Europe!across multiple geographical regions, populations, languages and broadcasters!is "far more complex," explained Eltzroth.

Ulrich Reimers, DVB-Terrestrial technical-module chair and a professor at Germany's Technical University Braunschweig, added that DVB's heterogeneous membership makes IPR negotiations even more difficult. "CableLabs, whose members are only cable operators, can arm-twist manufacturers," he said.

DVB can control a spec's technological particulars, Reimers said. "The only thing we cannot control is IPR ambush."

As tech companies feel increased pressure to prove that their R&D activities yield concrete financial benefits, some members are asking whether open standards can provide the needed IPR clarity. That holds particularly true for CE vendors, Laven said, where "IPR was once seen as a bonus, but royalties are now crucial to survival."

- Junko Yoshida
EE Times

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