Will be software implementation of international standard, published under GPL, a patent infringement?

Question

There are a lot of different standards in Telecommunication area, which based on patents created, by telecom corporations.

For example, there is a technology LTE - standard for high-speed wireless communication, patents of it certain parts belongs to various telecom companies, such as Ericsson, Nokia, Motorola.

Usually, they form a consortium, supported by the International Telecommunication Union(ITU), which publishes standards and specifications for these technologies. So when you use the LTE hardware as third party, you pay royalties to this consortium. Money then distributed, depending on the patents, between corporations.

Lets consider abstract situation: I am implementing software, not the hardware method, which is implementation of standard, such as LTE base station module in Haskell(programming language) and publishing it under the GPL.

Will it be infringement of the patents associated with standard, or not?

How OSS projects like openBTS, who implemented GSM standard in C++ and published it under GPL licence, do note face problems of infringement?

Answer 1

Infringement happens when you make, sell or use a method or product covered by a patent. (As always, note that there are many nuances.) So, yes, technically, if your software implements a method in the way it is claimed, it would be infringing.

Publishing the patent method in software under GPL by an implementer unaffiliated with the patent owner does not affect the patent owner's rights, because those rights are not the implementer's to give away. Only if the patent owners themselves published code or software containing the patented method under an open source license could those rights be lost. (And even then it's probably debatable.)

The reason it is not much of a problem is that just because you would be infringing does not mean you are automatically not supposed to do something. A patent does not mean anything that infringes is automatically illegal and that you must not do it. A patent simply is a right for the patent owner to sue you if you indeed are infringing, and it's entirely at the patent owner's discretion. If the owner does not find out about the infringement or does not care (which happens pretty much all the time), you can continue infringing.

The big risk is that doing so, especially knowingly, may make you liable for future damages if a patent owner does decide to assert the patent somewhere down the line.

Thus open source projects like OpenBTS may certainly be infringing patents, but it's not a problem until the patent owners decide to assert them. Considering that there is currently a negligible chance of OpenBTS eating into telecom equipment providers' business, the risk of them initiating legal action should be minimal.