Midnight at the OASIS

Related link: http://www.oasis-open.org/who/ipr/ipr_faq.php

Something seems odd in OASIS's new IPR FAQ on why they will allow some technical groups to be RAND (i.e. allow standards
with patents, as long as the patent-holders agree to charge license on a "Reasonable and Non-Discriminatory" basis):

In today's reality, no standards organization can ensure that its work is or will remain completely free of patent claims. There is always a risk that someone in the world holds a patent that can be claimed as essential for any specific standards project...

OK so far: there may be a claim from some outsider and the IPR system is out of control.

The most any standards organization can do is provide clear, equitable regulations to govern the behavior of those who participate in its work and publicly document the licensing commitment of all participants.

OK: we are all only human.

The OASIS IPR Policy seeks to create the greatest possible incentive for patent holders to participate productively in an open standards process, responsibly disclose their interests, and make available, without prejudice, licenses for any essential claims they may have.

The idea seems to be that a poor committee finds, late in the day, that some moustache twirling capitalist has a patent. Rather than calling it a day in the interests of building an infrastructure that the little boys can play in too, or negotiating a royalty-free arrangement, OASIS says the show must go on.

But how convenient that this policy also seems to allow a patent holder to use OASIS as a marketing tool. You need to turn your getting-dusty IP into a performing IP asset, so you join a committee, get your patent adopted into a standard, then sit back and lick up the gravy.

If protection against unknown outsiders is the reason, then why not make the committees start off being royalty free or free, and allow RAND members to join only after the event? That might hinder gold-diggers.

I am not a lawyer and I am not an expert in OASIS' new policy. However I have been in the position of working through IP claims on a draft standard. OASIS' policy seems unworkable to me because they will neither search for patents nor judge them: any old junk patent will be accepted. But patents are typically written as broadly as possible, and it is not in the interest of patent holders (those, at least, who still think the game is worth playing for software and infrastructure patents) to minimize the scope of their claims.

How to put the camel to bed?