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Forgent's logo. Click here to visit the Forgent website! JPEG no more? ISO mulls withdrawal of standard
(Wednesday, July 24, 2002 - 12:21 EDT)

'Register' article suggests the standards body may formally withdraw the JPEG standard altogether if Forgent continues with its patent claims...

In an unprecedented move, the International Organisation for Standardisation (ISO) - a standardisation body established in 1947 which counts some 140 countries amongst its membership - is considering withdrawing the JPEG standard altogether, according to reports. British online information technology newspaper The Register has published a detailed article which reveals that the move is being considered because ISO rules require that its standards be implementable free, or under "reasonable and non-discriminatory" (RAND) terms.

A look at the "ISO/IEC Directives, Part 1 - Procedures for the technical work" confirms that this is the case. The relevant directives in this case are:
If technical reasons justify the preparation of a document in terms which include the use of items covered by patent rights, the following procedures shall be complied with.
  1. The originator of a proposal for a document shall draw the attention of the committee to any patent rights of which the originator is aware and considers to cover any item of the proposal. Any party involved in the preparation of a document shall draw the attention of the committee to any patent rights of which it becomes aware during any stage in the development of the document.
  2. If the proposal is accepted on technical grounds, the originator shall ask any holder of such identified patent rights for a statement that the holder would be willing to negotiate worldwide licences under his rights with applicants throughout the world on reasonable and non-discriminatory terms and conditions. Such negotiations are left to the parties concerned and are performed outside ISO and/or IEC. A record of the right holder's statement shall be placed in the registry of the ISO Central Secretariat or IEC Central Office as appropriate, and shall be referred to in the introduction to the relevant document [see ISO/IEC Directives, Part 2, 2001, H.3]. If the right holder does not provide such a statement, the committee concerned shall not proceed with inclusion of an item covered by a patent right in the document without authorization from ISO Council or IEC Council as appropriate.
  3. A document shall not be published until the statements of the holders of all identified patent rights have been received, unless the Council concerned gives authorization.
Should it be revealed after publication of a document that licences under patent rights, which appear to cover items included in the document, cannot be obtained under reasonable and non-discriminatory terms and conditions, the document shall be referred back to the relevant committee for further consideration.
Forgent is requiring payment from manufacturers using JPEG compression in their products, and is not charging a uniform usage fee; instead companies are required to negotiate directly with Forgent, without knowing what their competitors agreed to. This works nicely in Forgent's favor - the company can ensure it squeezes the maximum cash out of companies without risking a court case that it may lose. Patent speculation relies on exactly this; if you ask for just enough money that it is cheaper for a company to sign on the dotted line rather than fight you, chances are you're going to generate a lot of money for little effort. It is certainly not "reasonable and non-discriminatory" licensing though, and this is what has the ISO considering withdrawal of the JPEG standard.

The question is - what effect would ISO's withdrawal of the JPEG standard have? At this stage, JPEG is so commonly used that even if the standard were to be withdrawn, it would still essentially be a "de facto standard". Manufacturers aren't going to drop JPEG support overnight, and hence they must either pay Forgent or take a stand and air the issue in court.

If a manufacturer chooses to take this second course, it is likely they'll find significant support from the user community, but they must be fairly sure they would win to take such a step. This, to us, is why the JPEG Committee seems to be taking the right step by seeking proof of prior art in the case. If they can help manufacturers by laying the groundwork for a challenge against Forgent, it is more likely that a case will be brought.

The article also makes another interesting point; since this item broke we've seen much comment around the web to the effect that other standards should be used - perhaps the most commonly suggested being PNG (Portable Network Graphics). The problem is that it is difficult - if not impossible - to be sure that any standard doesn't infringe on a patent you're not even aware of. This was the case with the GIF standard, which CompuServe developed whilst being unaware that UniSys held a patent on the compression method it used. There's also the possibility of patents being issued whilst a standard is being debated, or potentially even after it has been finalised. This is where the real problem lies.

The only true fix for problems like this is a total rethinking of how patents work. Initially designed to protect the individual with an invention and allow them to profit from it, patents today do the very opposite. In most cases, the individual cannot afford expensive litigation against companies, so the patent offers them little protection.

At the same time, big business can afford to apply for patents on every tiny little change to a product or process, and in many cases these patents are being granted. They can - and do - find loopholes to have patents extended beyond their intended lifetime, which benefits the company further, but does damage to competition. In effect, patents are working as government-sanctioned monopolies, when it is acknowledged that in most cases a monopoly is a bad thing to allow.

What is most important is that we need better control over just what constitutes a valid patent. A recent case where a 7 year old boy from Minnesota (with assistance from his attorney father) patented a "method of swinging on a swing" showed just how easy it is for junk patents to be granted. Many of our readers will recognize this "patented" swinging method as something they did themselves as a kid, but the patent was granted regardless. An extreme case, perhaps, but the flood of patents on tiny "inventions" from the corporate world has left the US Patent and Trademark Office struggling against a flood, and doubtless hundreds of patents slip through where they shouldn't. Those patents can resurface later and cost the public money, either as companies pay licensing fees, or legal fees fighting the patent - and these costs show up in the price of that company's products.

For more discussion, be sure to read our previous two news articles on the Forgent JPEG case:

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