DevOps, intellectual property and who owns what

DevOps collaboration intellectual property
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Collaborative DevOps brings lots of benefits, but it also raises legal issues of IP ownership and management. A joint development plan will help you sort that out in advance, writes Openet’s Laura Flood.

There’s been a lot of discussion about collaborative software development between operators and vendors. Collaboration is great – but who’s going to own the rights to the software?

The telecoms sector has always leveraged collaboration. Often these relationships were either informal or structured as research initiatives for demonstrations. This collaboration drove operator and vendors strategic interests and usually worked well.

But recent radical changes in both technology and commercial realities of the sector are shaking up these collaborative models. There is drive to have more agile and cost-effective systems that can cater for the increased rate of change in the market. This is resulting in vendors and operators working together on production systems using DevOps.

While collaborative DevOps brings many benefits, it can also bring new challenges. If not addressed up front, such challenges could cause chaos further down the line. These include license and IP management areas and in work practices. My colleague, Tony Gillick, produced a recent article for Disruptive.Asia on partnership development models. This article seeks to add insights into the legal and IP issues to consider.

Joint development

The foundation of a successful collaboration is the mutual desire to embrace innovation. Over several years, Openet has established and maintained invaluable relationships with its customers on this basis. These relationships help cultivate a joint response to emerging trends. This has seen some large operators harnessing their internal skills to develop solutions. To complement these discussions, operators are inviting suppliers (like Openet) to the table.

Recent collaboration and co-development has seen Openet partnering with its customers. We’ve jointly developed digital BSS solutions that will increase 4G revenues and get them ready for 5G. Also systems are enhanced and legacy system costs are reduced. This collaboration is developing new agile systems for cloud and 5G related developments. At Openet we bring a wealth of experience together with a library of microservices, and an open attitude to work with our customers’ internal teams. Jointly we address problems, drive improvements and foster innovation.

Joint development can take many forms, so agreeing on a joint development plan (JDP) from the outset is key. This ensures that project parameters are well defined and agreed up front. This includes the development, use, ownership, protection and enforcement of IP that is created. It discusses how both companies (vendor and service provider) will bear financial risks and liabilities as to IP. It also examines any rights or obligations upon termination as to IP.

Who owns what?

One of the most obvious questions for collaborative development using DevOps is: “Who owns the IP?” There are options for ownership, which include the following:

  • The companies jointly own the joint IP during the life of the JDP. This requires that there be a plan in place in the event of termination and/or dissolution of the JDP.
  • The companies in the JDP jointly own and have an undivided interest in joint IP. Here each company has unrestricted use, including the right to sub-license. Also the companies may be joint owners or licensees.
  • Each company has joint ownership but subject to restrictive covenants (e.g., to prevent disclosure to competitors). The joint IP is assigned solely to one party and licensed to the other party while the JDP is in operation.

It is helpful if both companies agree up front to put in place contractual arrangements and mechanisms that can be implemented. In short, it is worth shaping the model to address a scenario where one company owns the joint IP, but that company is required to license it to the other on a worldwide basis for no consideration.

We are mindful of the challenges with sharing IP, particularly where project outcomes are difficult to predict. As such, in Openet’s co-development projects, a collaborative approach seeks to ensure that both companies clearly define its background IP. We have worked with our customers to address ownership of new developments. The key consideration is whether the development improves upon one company’s background IP as opposed to the others. The company that is afforded the ownership benefit will provide the other with a worldwide, non-exclusive license of an invention to the other (non-owning party) for no consideration. With co-development the approach to IP provides a mechanism where both companies benefit.

Many vendors will claim to have microservices architecture capabilities. But often this is not deep or shaped by experience. The IP aspects of working with microservices and in a DevOps fashion can be complex. It can have unintended consequences for both companies if not managed well.

As is often the case, the devil can be in the detail. A clear understanding of core microservices technology, API management and associated configurable business logic are details that need to be managed up front. Collaboration using microservices and DevOps is a very exciting and forward-looking model. Having the right framework is key – and this is why a JDP must be the foundation for collaboration. It’s worth the effort to get this right from the start.

Laura Flood, Legal Counsel at OpenetWritten by Laura Flood, legal counsel at Openet

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