Patent problems pending

Just when the automation industry has accepted the concept of open systems, a failure to grasp the intellectual property rights implications threatens an upset

ever since the open systems issue first impacted the IT industry in the early '80s, focussing at that time on the potential of UNIX as a standard operating system and Ethernet as an open networking protocol, vendors have had to choose between the proprietary bird in the hand and the two, two hundred or two million non-proprietary birds in the open systems bush. When the open systems debate reached the factory floor in the mid-'80s, it rapidly became clear that the problems which had seemed merely complex in the IT industry became positively labyrinthine in the automation sector. The resulting fieldbus wars lasted some 15 years and only came to an end at the beginning of last year when the exhausted combatants all dropped their guard simultaneously, giving the referee an opening to step in and impose the multipart IEC 61158 compromise standard which incorporates both the chief rivals, Profibus and Foundation fieldbus, as well as no less than six other protocols.

Up to that point, discussion of open systems had always focussed on the advantages or disadvantages of vendors setting aside their own technology in favour of that embodied in the standard, the assumption being that the right to use the standard technology was implicit in the very existence of the standard. Hardly was the ink dry on IEC 65118, however, when Endress+Hauser was petitioning the IEC to withdraw it and demanding that CENELEC block the previously agreed incorporation of Foundation fieldbus into its European counterpart, EN50170. Endress+Hauser's concerns centred around what it believed was the very real possibility that, having committed to the development of a range of Foundation fieldbus and hence now IEC 61158 and EN50170 compliant products, it and its customers could find themselves open to patent infringement claims from Fisher-Rosemount, which, it claimed, had only assigned the rights to certain of its proprietary technologies relating to control in the field to the Foundation for a limited period. While Fisher-Rosemount argued that it was simply following normal practice, the Foundation blustered that there couldn't be a problem because, if there were, someone else would have noticed it already. Last Autumn, however, it appeared to at least concede the possibility when it produced a new policy on intellectual property rights whereby it gave itself the power to expel from membership any company which refused to assign to it rights which were "deemed essential by the Foundation' board of Directors to implementation of the Foundation's published specifications..."

Since Dick Caro, who had chaired both the IEC and ISA fieldbus committees, was on record as describing the technology in question as "the basic idea leading to the creation of the ISA SP50 fieldbus standard and the resulting formation of the Fieldbus Foundation to implement that standard" it is perhaps hardly surprising that Fisher-Rosemount, in March of this year, announced that it was donating the so called Warrior patents to the Foundation. The decision should not just allay Endress+Hauser's immediate fears, although Fisher-Rosemount denies any direct connection, but could also open up wider possibilities, notably for the incorporation of both Foundation fieldbus and Profibus capabilities within the same device.

If that marks a final end to the fieldbus wars, it certainly doesn't close the broader issue of how or even whether companies should enforce their intellectual property rights. Just as Fisher-Rosemount was donating its Warrior patents to the Foundation, Schneider Electric was deciding to sue Opto 22, alleging that technology used in Opto 22's Ethernet Brain products, which in effect incorporates a Web server into a PLC, infringes patents which it holds and which it had originally purchased from Control Technology Corporation (CTC).

Whatever the merits of its case, Schneider has brought down a storm of acrimony on its head. What the discussion highlights is that intellectual property rights now pose a real dilemma. On the one hand their enforcement could impede the adoption of and further development of the technologies they are designed to protect; on the other their abandonment removes the prime motivation for developing the technology in the first place.

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Andrew Bond is the Editor of the monthly subscription newsletter Industrial Automation INSIDER. You can contact him by email at scada@abpubs.demon.co.uk. And if you mention INOC, Andrew will send you a complimentary copy of the latest issue of Industrial Automation INSIDER

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