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To: David Law, Chair, Patent Committee; David Ringle, IEEE-SA Patent Administrator David and David, I am writing to ask that at its December meeting the Patent Committee discuss the question of the application of the updated IEEE-SA By-Laws to “work in process” at IEEE-SA. My request is prompted by the submission on September 1st of the letter attached to document IEEE 802.11-15/1026r0 (available at
https://mentor.ieee.org/802.11/dcn/15/11-15-1026-00-0000-communication-to-patcom-related-to-802-11ah.pdf ). The reference in the September 1st letter to a 2009 blanket Letter of Assurance submitted by CSR to cover ongoing work in the IEEE-SA
802.11ah working group suggests a possibility that the Patent Committee should carefully consider. The possibility is that the submitter of the September 1st letter believes that its reference to a Letter of Assurance dated before the effective
date of the updated By-Laws (March 15, 2015) means that all patents identified by the submitter of the earlier Letter of Assurance (or, in this situation, a subsequent acquirer of the submitter) as essential to 802.11ah are covered by the By-Laws text as of
the date the earlier Letter of Assurance referenced in the September 1st letter was submitted.
If that belief is correct, the effect would be that any participant in IEEE-SA standards development that can find a blanket LoA submitted before March 15 can continue to participate in standards development at
IEEE, avoid the implications of a refusal to license patents under option (d) of the IEEE-SA Letter of Assurance form, yet evade the application of the updated By-Laws indefinitely. Acceptance of that position would create significant uncertainty among participants
in IEEE-SA standards development and implementers of IEEE-SA standards, uncertainty that IEEE-SA should quickly address. As an initial matter, it would be helpful for the Patent Committee (and, if necessary, the Standards Board) to understand what position the submitter of the September 1st letter is taking relative to the application
of the updated By-Laws to patents and applications it has identified and may identify in the future as essential to 802.11ah.
Second, the Patent Committee may wish to offer guidance to participants in IEEE-SA standards development regarding how the updated By-Laws apply to work in process. For example, IEEE-SA could take one or more
of the following positions (which are not mutually exclusive):
·
The updated By-Laws apply to any Essential Patent Claim (as defined in the By-Laws) essential to an IEEE-SA standard approved by RevCom on or after March 15, 2015
·
The updated By-Laws apply to any Essential Patent Claim essential to an IEEE-SA standard that results from a PAR approved by RevCom on or after March 15, 2015
·
The updated By-Laws apply to any contribution incorporated into an IEEE-SA standard and made by the owner of an Essential Patent Claim if such contribution was first made on or after March 15, 2015
·
The updated By-Laws apply to any Essential Patent Claim contained in a patent that claims a priority date on or after March 15, 2015 The points of potential guidance provided above are illustrative only. The discussion during the December Patent Committee meeting may identify additional possibilities. Please note that
I am not asking the IEEE-SA to deviate from its position that it will not decide whether the updated By-Laws do or do not apply retroactively. Instead, I am asking the Patent Committee to clarify to what work ongoing at IEEE-SA on March 15, 2015 the updated
By-Laws apply. Thank you in advance for your consideration of my request that the issue of guidance regarding the application of the updated By-Laws to work in process be included in the agenda for the December meeting of the
Patent Committee. Best regards, Gil Ohana (employed by and affiliated with Cisco Systems) |