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----- Original Message -----
Sent: Friday, March 24, 2006 9:43
AM
Subject: Re: [PP-DIALOG] Application of
per se rule to ex ante joint conduct
Thank you David:
The example you gave fits the statement of the problem at
the IETF IP WG. It illustrates the need for an SDO obtain the
IP rights to the work products that its committee processes are
generating.
See you Monday
RFC1286, RFC1493 and RFC 1525 apparently precede any
specific IETF
document describing the copyright and
intellectual property rights
that authors grant to the
IETF. RFC2674 falls under RFC 2026
[RFC2026]
rules. The three recent updates, [RFC4188], [RFC4318],
and
[RFC4363] fall under BCP 78, as documented in RFC3978
[RFC3978].
To permit the maintenance responsibilities for
documents containing
the BRIDGE-MIB [RFC4188] and the
P-BRIDGE-MIB and Q-BRIDGE-MIB
[RFC4363] and RSTP-MIB [RFC4318]
to become the responsibility of the
IEEE 802.1 WG, the IEEE
802.1 WG will need to get permission from the
authors, and/or
the companies to whom the authors have assigned their
intellectual property rights in these documents, so they can
publish
derivative works.
----- Original Message -----
Sent: Friday, March 24, 2006
8:35 AM
Subject: Re: [PP-DIALOG]
Application of per se rule to ex ante joint conduct
Hi George,
I suspect what you are referring to is the
plan to transition
responsibility for bridging-related MIBs from the
IETF Bridge Working
Group to the IEEE 802.1 Working Group, which
develops the bridging
technology the MIB modules are
designed to
manage. There is an internet-Draft describing the plan
'Transferring MIB
Work from the IETF Bridge WG to IEEE 802.1 WG' which
includes Clause 10
'Intellectual property considerations' which I think
may address your
questions. This internet-Draft is available at the URL:
http://www.ietf.org/internet-drafts/draft-harrington-8021-mib-transition-01.txt
I
believe a 2 week IETF Last Call was going to be used for a IETF
community-wide review of this document.
While I of course cannot
speak for the IEEE 802.1 Working Group, as far as
I am aware this is
simply the Working Group ensuring, as Working Group
always shall, that
copyrighted material (the existing MIBs) that was
possibly going to be
included and modified in their future proposed
standards had the correct
copyright releases associated with it.
Best regards,
David
Law
"George T. Willingmyre" <gtwassociates@GMAIL.COM> wrote
on 23/03/2006
15:54:53:
> MessageI beg the list
members indulgence and understand this IP
> topic may be the
responsibility of some other IEEE committee. I
> hope it is
worth a short report sometime during the series of IEEE
> meetings
next week.
> The IETF IPR WG is currently focused on IP ownership
and use of
> contributions and workproducts of the IETF
process. At the meeting
> of the IPR WG http://www3.ietf.org/proceedings/06mar/agenda/ipr.txt
> Tuesday was mentioned that certain IP issues arose when
some IETF
> activity involving "Mibs" was proposed to be handed
over to IEEE for
> future maintenance. Can someone share the IEEE side
of this proposed
> handoff from IETF to IEEE and what were the IP
concerns of the IEEE?
> Below is the relevant section of the IETF
working document
> concerning "Derivative works"
>
>
http://www.ietf.org/internet-drafts/draft-ietf-ipr-rules-update-04.txt
>
1.4 Derivative Works
> Currently the IETF obtains from
Contributors the right to prepare
> derivative works of their
Contributions within the IETF Standards
> Process. This is done
in RFC 3978 Section 3.3 (a) (C). The IETF
> Trust should
modify that paragraph in Section 3.7 to grant the IETF
> Trust the
ability to authorize the preparation of derivative works
> without
limiting such development to the IETF Standards Process.
> Such a
paragraph would not, by itself, grant any additional
> permissions
outside of the IETF, but would empower the IETF Trust to
> authorize
the development of derivative works outside of the IETF
> Standards
Process. One example of where the IETF Trust might grant
> such
a right is the case where another standards development
> organization
(SDO) wants to update or extend an IETF technology
> (which would
normally be done by the SDO sending their requirements
> to the IETF)
but the IETF no longer has a working group focused on
> the particular
technology and the IETF does not have the interest to
> create a new
working group
>
> George T. Willingmyre, P.E.
> GTW
Associates
> 301 421 4138 facsimile 301 421 0977
> www.gtwassociates.com
> -----
Original Message -----
> From: Lindsay, Michael
> To: PP-DIALOG@listserv.ieee.org
>
Sent: Wednesday, March 22, 2006 10:18 PM
> Subject: Re: [PP-DIALOG]
Application of per se rule to ex ante joint
conduct
>
>
Michelle: I represent the IEEE. As recently as this month, I
have
> fielded questions from IEEE participants on how they, as
engineers,
> can make cost-benefit comparisons between competing
technology
> proposals if they don't know the "cost" side of that
equation --
> including the likely (or at least the announced
maximum) royalty and
> other Ts &Cs. That is not to say that
they want to debate whether
> the terms are fair, or whether
(consistent with a RAND commitment)
> their company can get better
than the announced maximum. It is just
> to say, taking the
patent-holder at its word, is the perceived
> comparative benefit
worth the comparative cost.
> The proposal now on the table is
intended to facilitate the process
> by permitting patentholders to
make the unilateral decision to
> disclose the maximum terms that
they will require, and to do so in a
> manner that permits those using
the information to know that it is
> binding and can be relied
upon. I find it difficult to get too
> excited about the legal
risk where the maximum "agreement" at issue
> is an "agreement" (if
that's what it is) that participants will hear
> what people have to
say, should they choose to say anything, and
> make the same kinds of
decisions that they have to make today, but
> with better (or at
least less imperfect) information.
> Gil and Bob have pointed to
the primary sources of antitrust
> enforcers' views on a
patentholder's unilateral disclosure of terms,
> and Richard has made
the fair point that the enforcers also spoke
> about "joint
discussion" and joint negotiation -- topics that are
> not on the
table today. Moreover, as was stated at the February
> meeting,
the IEEE currently expects to seek a business review letter
> from the
FTC or DOJ, which would provide very specific antitrust-
> enforcement
guidance based on the proposal as described.
> As to the point
(elsewhere in this discussion thread) that the IEEE
> should avoid
legal risk for fear that the rules might change again,
> and to the
extent that the business-review process does not allay
> that
concern, let me put it this way. Like everyone else in this
>
vale of tears, the IEEE faces all manner of risk, both business and
>
legal, and yes, we must always be mindful that the nature and degree
>
of legal risk can change over time. But we can't very well ignore
> the real risks of today based on fear that we might see the return
> of the "Nine No-Nos" (or, heaven forfend, disco, leisure suits, and
> other artifacts of the 1970s).
> -----Original
Message-----
> From: Taffet, Richard S.
[mailto:richard.taffet@BINGHAM.COM]
> Sent: Monday, March 20, 2006
10:23 AM
> To: PP-DIALOG@listserv.ieee.org
>
Subject: Re: [PP-DIALOG] Application of per se rule to ex ante joint
conduct
>
> Of course it is important to consider the
entirety of Chariman
> Majoras's comments, which recognized the
continuing potential for
> anticompetitive effects arising from ex
ante conduct.
> Thus, she stated that "joint ex ante royalty
discussion that are
> reasonably necessary to avoid hold up do not
warrant per se
> condemnation. Rather, they merit the balancing
undertaken in a rule
> of reason review." (at page 7)
Accordingly, "[i]t may . . . be
> appropraite to consider whether
joint ex ante royalty discussions
> are reasonably necessary to
mitigate hold up." (at page 9) This
> remains important
because "joint ex ante royalty discussions, of
> course, can offer an
opportnity for SSO members to reach side price-
> fixing agreements
that are per se illegal." (at 10)
> Moreover, as Chairman
Majoras stated, "'[h]old up' by no means is
> invevitable. For
example, if the chosen standard has to compete
> with rival
standards, the owner of the SSO's chosen technology may
> end up with
little market power. If users can respond to a supra-
>
competitive royalty rate by defecting to a rival standard, the
>
patent holder will find itself unable to obtain anything more than
>
the competitive price. . . . Moreover, even if an intellectual
> property owner can obtain a royalty rate higher than those of other
> technology owners, members of the organization that chose the
> standard are not necessarily being held up. The higher
royalty rate
> may be explained by the superiority of its
technology. That is, its
> peerless technology - developed
through 'superior skill, foresight,
> and inudstry' - may explain the
ability to charge a premium." (at
> 3) Accordingly,
policies that require joint royalty determinations
> may find no
support for antitrust purposes based upon a hold up theory.
>
Further, Chairman Majoras recognized that "even absent antitrust
>
concerns, SSO members may refrain from such discussions for business
>
reasons alone." (at 11) "Thus," she made clear, "by pointing out
> the potential for joint ex ante royalty discussions to mitigate or
> eliminate the hold-up problem, I don nto mean to suggest that such
> discussions in SSOs are required. I simply offer my view that
> conducting legitimate joint ex ante discussions does not warrant
per
> se condemnation." (at 12.)
> Then Assistant
Attorney General Pate also identified the balance
> that is needed in
this area. He commented that "[t]here is a
> possiblity of
anticompetitive effects from ex ante license fee
> negotiations, but
its seems only reasonable to balance that concern
> against the
inefficiencies of ex post negotiations and licensing
> hold up.
. . . . Barriers to discussing licensing rates may not be
>
enitrely law-related. Some standard setting participants do not
> want the distraction of considering licensing terms.
Engineers and
> other tecnical contriubtors may prefer to leave the
lawyers at home
> and limit idscussions to technical issues
alone. So there may be
> powerful incentives to keep the status
quo." (at 9-10)
> So, it may just be a truism that more
information early in the
> process is good, and as Bob suggests I
don't think either the FTC or
> DOJ would object to that. Once
you go past that point, however, the
> issues become a lot more
complicated and both Chairman Majoras and
> then Assistant Attorney
General Pate were careful to acknowledge the
> balance and
consideration of issues that needs to be undertaken even
> if the
discussion is focused solely on antitrust issues and avoids
> all of
the other practical issues entirely.
> Richard S. Taffet,
Esq.
> Bingham McCutchen LLP
> 399 Park Avenue
> New York,
New York 10022-4689
> T: (212) 705-7729
> F: (212)
702-3603
> email: richard.taffet@bingham.com
>
cell: (914) 582-2477
>
> -----Original Message-----
>
From: Skitol, Robert A. [mailto:Robert.Skitol@DBR.COM]
> Sent: Monday,
March 20, 2006 9:55 AM
> To: PP-DIALOG@listserv.ieee.org
>
Subject: Re: [PP-DIALOG] Application of per se rule to ex ante joint
conduct
>
> Michelle, Gil's reference to FTC Chairman
Majoras's Sept. 2005
> speech is also responsive to your inquiry in a
subsequent Saturday
> email asking for "specifics where enforcement
agencies support more
> material information in standards-setting"
including "upfront
> material license terms . . . ." As Chairman
Majoras observed in that
> same speech, "if owners stated their
royalty rates upfront, then
> price could become part of the
competition among technologies for
> incorporation into the
standard." She more generally sought in that
> speech to knock down
unwarranted antitrust concerns that have
> "unduly prevented
announcements of pricing intentions . . . that
> may, in fact,
provide procompetitive benefits."
> Three months earlier,
then-Assistant Attorney General Hew Pare,
> Chief of DOJ's Antitrust
Division, gave his own speech along the
> same lines. He noted, for
example, that "a difficulty with RAND . .
> . is that the parties
tend to disagree later about what level of
> royalty rate is
reasonable"; he recognized how ex ante disclosures
> and indeed even
ex ante negotiations over royalty rates could
> address that problem;
and, in response to some expressed antitrust
> concerns over such
steps, he observed that "[i]t would be a strange
> result if
antitrust policy is being used to prevent price competition."
>
Gil's note provides the website for Chairman Majoras's speech. The
>
website for Assistant Attorney General Pate's speech is as
follows:
> http://www.usdoj.gov/atr/public/speeches/209359.pdf
>
> -----Original Message-----
> From: Gil Ohana (gilohana)
[mailto:gilohana@CISCO.COM]
> Sent: Monday, March 20, 2006 1:17
AM
> To: PP-DIALOG@listserv.ieee.org
>
Subject: Re: [PP-DIALOG] Application of per se rule to ex ante joint
conduct
>
> Hi Michelle,
> Thank you for your
thoughtful questions. I have tried to respond
> in-line
below.
> Gil Ohana
> Director, Antitrust and
Competition
> Cisco Systems, Inc.
> 300 E. Tasman Drive
>
MS 10/2
> San Jose, CA 95134
> United States of America
>
Phone: +1 408 525 2853
> Mobile: +1 408 203 5301
> E-mail: gilohana@cisco.com
>
>
------------------------------------------------------------------------
>
From: Michelle Lee [mailto:mleelaw@NORTEL.COM]
> Sent: Friday, March
17, 2006 10:27 PM
> To: PP-DIALOG@listserv.ieee.org
>
Subject: Re: [PP-DIALOG] Application of per se rule to ex ante joint
conduct
>
> I've seen conflicting positions in this dialog
about the
> voluntariness of disclosure of terms. It leaves me
confused what is
> expected policy. The package of proposals
appear designed to not
> only provide licensing position options
under an LOA, but an
> assurance of guaranteed commercial prices and
licensing terms in
> advance of the standard being available to the
general public. If
> these proposals move IEEE to a regime that
requires licenses or
> mandates an assurance of a license or blanket
license as a condition
> of participation or contribution, IEEE may
want to have outside
> counsel advise it further about imposing that
type of policy agreement.
> I believe that the rules changes being
proposed for consideration by
> PatCom only provide for the assurance
of commercial prices and
> licensing terms as one option that a
participant that contributes
> what it believes are essential patents
may provide. As a supporter
> of the changes, the way I see
them working is that the other
> participants will draw their own
conclusions from the choice that
> their fellow participant
makes. Some of them may be more inclined
> to vote in favor of
the inclusion of a particular technical
> contribution in a final
IEEE standard if they are assured in advance
> that the technology
will be available to them on set terms. For
> others the
existence of a detailed licensing commitment may matter less.
> I
will let IEEE comment on the legal advice it may have received
> from
IEEE counsel. As you may be aware, there have been a number of
>
recent statements from US and European competition authorities that
>
have expressed the view that, to quote FTC Chairman Deborah Majoras,
>
“a patent holder’s voluntary and unilateral disclosure of its
>
maximum royalty rate … is highly unlikely to raise antitrust
>
scrutiny." (Chairman Majoras' speech is available at http://www.
>
ftc.gov/speeches/majoras/050923stanford). I assume that this and
> other pronouncements by the Justice Department Antitrust Division,
> the Federal Trade Commission, and the European Union have given
> IEEE's antitrust counsel comfort with the proposed rules changes,
> but again, they can speak for themselves.
> I would also
like to know how voluntary disclosure will work in
practice:
>
> Will IEEE expect and request or call for public disclosure of
>
confidential rates/terms from members?
> > Will IEEE allow its work
groups to take any negative presumptions
> without disclosed terms?
How is that voluntary?
> > Can IEEE PatCom reject the terms if they
don't satisfy some
> criteria it determines appropriate?
> >
Rates are much more complicated than fixed lumpsum fees. How
will
> maximum rates be useful to IEEE process? Will they mislead
rather
> than clarify?
>
> On the first question, it is
not at all unsual for patentholders to
> disclose a licensing program
including detailed terms. Once
> disclosed, of course, those
terms become non-confidential. Also, to
> go back to an earlier
point, the disclosure of terms is only one
> option that a
patentholder may choose. If it wishes to keep its
> detailed
tersm confidential, it is free to check the RAND box and
> invite
questions from licensees regarding its terms.
> As to "negative
presumptions" that working groups may draw from a
> failure of a
patentholder to disclose terms, my view is that
> individual
participants may well draw a negative presumption. In
> the
situation in which there are two substitute technologies
> competing
for inclusion in a standard, the fact that one of the
> submitters
has disclosed concrete licensing terms may be seen by
> other
participants as a reason, all other things being equal, to
> favor
that technology. In my view, that's a good thing.
> On your
question regarding IEEE PatCom rejecting terms, I will let
> the
PatCom members speak to this point, but my understanding is that
>
there is no expectation that the adoption of the proposed rules
>
changes would change the role of PatCom in reviewing LoAs, which
>
will remain focused on compliance with the formal requirements of
>
the IEEE rules, not the substance of particular LoAs.
> As to your
last point, I agree that licensing terms are more
> complicated than
fixed lumpsum fees. My own view, however, is that
> more
information about licensing intentions, made available earlier
> in
the standards development process, is better than less
> information
made available later. We can trust participants (and
> the
counsel that represent them) to assist in untangling detailed
disclosures.
> > Is IEEE promoting licensing terms through
its LOA process by
> accepting and collecting license rates and
T&Cs?
> > If IEEE accepts by signing the conditional terms
under a LOA
> contract, has it agreed the terms are acceptable or
that it accepts
> the commercial conditions offered?
>
>
Here too, I will let IEEE speak for itself, but from the perspective
>
of an observer of IEEE-SA and PatCom, I don't believe IEEE sees its
>
role as "promoting" particular license terms or Ts and Cs.
>
Likewise, I don't believe IEEE sees its role as validating the
>
acceptability (or, for that matter, the "reasonableness") of
>
proposed terms when it accepts an LoA.
> > It's a simple
example Don provides below, but why do Working
> Groups want/need to
get into the level of the type of discussion
> alluded beyond the
LOA?
> Working groups, and individual members of working groups,
may feel
> that more information regarding the terms under which
particular
> essential patents will be provided assists them in
making decisions
> regarding which technologies to support for
inclusion in a standard.
> In a world where the only disclosure
permitted is RAND, participants
> in a working group may feel that
they are being asked to make those
> decisions without much
information on which to compare alternative
> technology proposals or
decide whether a marginal feature should be
> included as a mandatory
part of a standard. This problem is
> compounded by the lack of
consensus as to what either "reasonable"
> or "non-discriminatory"
means, and specifically whether a commitment
> to license patents on
"reasonable" terms in any way constrains a
> patentee from charging
what the market will bear.
> I agree that rules against discussion
in meetings or development of
> the standard must be tight and
strongly enforced by IEEE over its
> participants. Practically
speaking, if terms are being requested to
> provide information to
IEEE process, how will IEEE/engineer
> participants avoid the
temptation of discussing them?
> We agree that legal risks should
be minimized in IEEE development
> process to the greatest extent
possible. Participants should be able
> to expect that more certain,
less risk environment and efficient
> process. I assume that this is
a universal principal we all share
> and is not controversial. I
don't see that it is in IEEE interests
> to discourage participation
in development in any way due to
> uncertain process or risks of
legal exposure.
> Recent agency statements regarding the antitrust
risks associated
> with disclosure of licensing terms may give a more
realistic picture
> of the antitrust risks that IEEE and participants
in IEEE working
> groups face from rules that permit disclosure of
licensing terms.
> As to the desire for mitigation of legal risk,
mitigation of legal
> risk is certainly one value that is important
in the process of
> creating standards and commercializing
standards-compliant products.
> Another value that Cisco and other
companies that participate
> regularly in standard-setting believe is
important is transparency
> in standard-setting, so that participants
and other implementers of
> standards-compliant products know as
early as possible what terms
> they will need to accept to implement
standards-compliant products.
> The proposed rules changes regarding
the definition of "reasonable"
> and the option to disclose at least
a not-to-exceed royalty rate
> support that goal.
>
Thanks,
> Michelle
>
> From: Don Wright
[mailto:don@LEXMARK.COM]
> Sent: Tuesday, March 14, 2006 5:32
PM
> To: PP-DIALOG@listserv.ieee.org
>
Subject: Re: [PP-DIALOG] Application of per se rule to ex ante joint
conduct
>
> Amy:
> The NEED for the change in
what is now clause 5.3.8 of the SASB Ops
> Manual will be a part of
the discussion in agenda item 6.2.6. I want
> PatCom to first decide
whether to recommend allowing for the
> voluntary disclosure of
not-to-exceed rates before we propose any
> specific language changes
to 5.3.8. I don't want to waste everyone's
> time arguing about the
word changes there unless and until PatCom
> decides to recommend
allowing the disclosure.
> I tend to agree with you that the
language needs a little
> "tightening" especially to insure group
negotiation of pricing does
> not happen in standards development
meetings. On the other hand, I
> don't know how we can forbid
"discussion" in the meetings because
> that might preclude the
following:
> Party 1: "We've committed to charge $10,000 to use
our patent"
> Party 2: "Is that a one time fee, an annual fee or
something else?"
> Party 1: "That's a one time fee."
>
>
Is the above a discussion? Many would answer yes. Should it be
>
forbidden? Personally, I don't think so.
> The question then
becomes how to draw the line to allow for the
> above and other
similar interchanges while not allowing overt
> negotiation in
standards development meetings.
> Should PatCom decide to
recommend allowing disclosure, I will
> welcome your suggestions for
wording!
>
***************************************************************************
>
Don Wright don@lexmark.com
> f.wright@ieee.org / f.wright@computer.org
>
Director of Standards
> Lexmark International Past Chair, IEEE SA
Standards Board
> 740 New Circle Rd Chair, Patent Committee IEEE
SASB
> Lexington, Ky 40550 Member-at-large, IEEE CS SAB
>
859-825-4808 (phone) Member, IEEE-ISTO Board of Directors
>
603-963-8352 (fax) Member, W3C Advisory Committee
>
***************************************************************************
>
> "Amy Marasco (LCA)" <amarasco@microsoft.com>
>
Sent by: PP-DIALOG@ieee.org
>
03/14/2006 07:43 PM
> To: <don@LEXMARK.COM>, <PP-DIALOG@listserv.ieee.org>
>
cc:
> Subject: RE: [PP-DIALOG] Application of per se rule to ex ante
joint
conduct
>
> Don, will this clause be discussed at the
upcoming PatCom meeting?
> With all due respect, I am concerned that
the wording in what was
> ops-manual-clause 5-3-9-v3.doc does not
sufficiently delineate what
> activity is permitted when and under
what rules or parameters. For
> example, can proposed licensing terms
be discussed at a technical
> committee meeting and, if so, what are
the procedures governing
thatactivity?
> Many
thanks,
> Amy
>
> From: Don Wright
[mailto:don@LEXMARK.COM]
> Sent: Tuesday, March 14, 2006 1:44
PM
> To: PP-DIALOG@listserv.ieee.org
>
Subject: Re: [PP-DIALOG] Application of per se rule to ex ante joint
conduct
>
> Amy, et al:
> If you examine the
agenda for the December 5th PatCom Meeting (http:
>
//standards.ieee.org/board/pat/1205patagen.html) and look at the
>
attachment to agenda item 5.3, you'll find a ZIP file containing a
>
document named ops-manual-clause-5-3-9-v3.doc. This was proposed to
>
address the issue of allowing the disclosure of licensing rates but
>
not allowing group negotiation of those rates at a standards
>
development meeting. PatCom could decide otherwise at any time but
>
the committee has been heading toward your (a) item below and not
>
your (b) item.
> (BTW: Due to recent changes made in the Standards
Board Operations
> Manual (http://standards.ieee.org/guides/opman/index.html),
that
> clause is now 5.3.8)
>
> "Amy Marasco (LCA)"
<amarasco@microsoft.com>
>
Sent by: PP-DIALOG@ieee.org
>
03/12/2006 01:24 PM
> To: "Skitol, Robert A." <Robert.Skitol@DBR.COM>,
<PP-DIALOG@listserv.ieee.org>
>
cc:
> Subject: RE: [PP-DIALOG] Application of per se rule to ex ante
joint
conduct
>
> I guess I am a little confused by the
exchange of e-mails in this
> string. I am wondering if there is any
degree of consensus around the
> notion that there is a difference
between:
>
> (a) the disclosure of possible licensing terms (I
say "possible" because
> it is likely that not all licensees will end
up with the exact same
> license), and
>
> (b) the
discussion or negotiation of such terms as a group under the
>
auspices of a standards body or as part of a standards-setting
activity.
>
> In other words, is there any consensus that the
PatComm should continue
> to debate the former, but that IEEE should
expressly prohibit the
> latter?
>
> My reading of the
Hydrolevel case is that ASME was held liable because
> it permitted
arguably anti-competitive conduct under its roof and under
> its
"apparent authority". Doesn't it seem that, based on the Hydrolevel
>
and Golden Bridges decisions, IEEE as a standards-setting
organization
> would better protect itself and its members from
possible antitrust
> claims by prohibiting group discussions or
negotiations of commercial
> licensing terms under its auspices than
by facilitating such activity?
>
> Whatever IEEE determines are
the appropriate parameters, I think that
> they should be spelled out
very clearly so that everyone understands
> exactly what activity is
permitted under IEEE's rules and what is not.
> I suspect that we can
all agree that any ambiguity in this regard would
> be
problematic.
>
> -----Original Message-----
> From:
Skitol, Robert A. [mailto:Robert.Skitol@DBR.COM]
> Sent: Friday, March
10, 2006 9:36 PM
> To: PP-DIALOG@listserv.ieee.org
>
Subject: Re: [PP-DIALOG] Application of per se rule to ex ante joint
>
conduct
>
> Richard conflates the idea of encouraging
unilateral disclosure
> of material license information -- the main
proposal now before the
> IEEE's PatCom -- with "collective
negotiation" and "collusive" conduct
> of the kind alleged in the
Golden Bridges case, which nobody is now
> advocating for the IEEE.
There is no credible basis whatsoever for any
> suggestion that the
unilateral disclosure policy idea now before PatCom
> would increase
antitrust risk or any other litigation exposure to IEEE
> or
participants therein. To the extent the proposal would result in
>
participants' disclosures of more license information during
standard
> setting, it would do precisely what (a) Congress expressly
encouraged
> SDOs to do in its enactment of the SDOAA two years ago
(see House
> Report) and (b) both Assistant Attorney General Pate and
FTC Chairman
> Majoras expressly encouraged SDOs to do in their
speeches within the
> past year. Numerous published in-depth analyses
(many cited in Chairman
> Majoras's speech) confirm the complete
antitrust legality as well as
> affirmative desirability of more
meaningful information disclosures
> along these lines. I am unaware
of even a single contrary analysis,
> published or otherwise, that
even begins to refute the supportive
> literature on this subject. As
already noted, both enforcement agencies
> endorse the idea of an
unqualifiedly "good" result from more rather than
> less material
information being available during a standard-setting
>
proceeding.
>
> Richard's suggestion of an antitrust problem
with IEEE's adoption
> of a definition of "reasonable" is equally
vacuous. IEEE already
> encourages patent owners to make RAND
commitments. How can it suddenly
> become an antitrust problem to
explain or clarify what RAND is intended
> to mean for this purpose?
Is the world better off with controvery and
> confusion over what RAND
means? That is a formula for more litigation of
> the sort that is
already burdening IEEE and other SDOs' standards.
>
> The irony
is that, while policy changes of the kind now under
> consideration
would entail no new legal risk of any kind, failure to act
> on them
would leave unaddressed the all-too-real existing risk of
> abusive
patent holdup conduct in connection with IEEE standards. This is
> a
reality of the status quo that has already generated litigation
>
messes, past and present. No need to get more specific about them
unless
> Richard wants to do so. Suffice it to say that failure to
address in any
> manner existing conditions enabling those disputes to
have evolved and
> enabling more such disputes to arise in the future
is nothing less than
> irresponsible.
>
> Instead of
chasing antitrust ghosts boo-hooing about any move
> forward, we
should worry more about exposure from (a) continued
> collective
suppression of highly material license information during
> standard
setting; and (b) continued collective refusal to adopt measures
> to
prevent anticompetitive manipulations of IEEE processes. Grounds for
>
real concern on those fronts can be found in (a) United States v.
>
National Society of Professional Engineers, 435 U.S. 679 (1978); and
(b)
> American Society of Mechanical Engineers v. Hydrolevel Corp.,
456 U.S.
> 556 (1982).
> -----Original Message-----
>
From: Taffet, Richard S. [mailto:richard.taffet@BINGHAM.COM]
> Sent:
Friday, March 10, 2006 3:32 PM
> To: PP-DIALOG@LISTSERV.IEEE.ORG
>
Subject: Re: [PP-DIALOG] Application of per se rule to ex ante joint
>
conduct
>
> Gil
> Thank you for your
comments.
> First, it may be that your perspective is focused
narrowly on the agenda
> posted for the March 27 meeting. If so, I can
see how you are having
> trouble in understanding how the Golden
Bridges decision may have an
> impact on discussions at the IEEE
PatCom, and how the decision may cause
> some concern even with the
issues that have been teed up for the next
> meeting.
>
>
However, we certainly have no control over how the agenda is set, or
how
> the PatCom is going to tackle all of the issues that have been
raised
> over the past 9 to 10 months. As you commented yesterday,
neither you
> nor I have any vote in what the PatCom does, and the
Chair has made it
> clear that he is not bound to abide by any
consensus of interested
> parties. Accordingly, I think it is very
important for all interested
> parties and the IEEE organization to be
sensitive to how specific issues
> that might be on the instant agenda
will lead to the discussion of
> future issues that have already been
identified and proposed for
> discussion. Included in this group of
issues that may be discussed in
> the future is a policy that would
have license terms decided by "[a]
> group of licensees negotiating
collectively with owners of competiting
> technologies." (source: June
2005 submission to DOJ and FTC). As you
> pointed out in connection
with that possibility there may be competitive
> justifications for
that type of arrangements, but whether there are or
> not would not
change the fact that a per se antitrust claim could be
> asserted in
connection with such conduct, and depending on the pleading
> such a
claim could very easily survive a motion to dismiss, or applying
> the
Golden Bridges' type of reasoning a motion for summary judgment.
>
> So, I think it is reasonable to consider specific proposals that
may be
> discussed early in the process for some reason in the context
of the
> broader proposals that have been made and which underlie this
effort. I
> do not think it is too far of a stretch to think that
there is some plan
> to establish positions, for example in connection
with the LoA, that
> will then compel policy changes that might not
otherwise be supported if
> addressed in the first instance from a
full policy position. Indeed,
> the email from the PatCom chair to
Larry Bassuk yesterday, as I
> understand it, says exactly this --
that the LoA is not intended to be
> amended to reflect current
policy, but is to be used to drive future
> changes in the policy. I
am not sure why it is not a legitimate
> comment, as I believe Larry
made, to suggest that this is not a proper
> approach, but the Chair
has indicated that he will not entertain such
> discussion. Putting
aside whether this procedural step itself, coupled
> with the
indication that decisions will not be made based on a consensus
> of
interested parties, raises some issues, including as might be
>
asserted under an Allied Tube analysis, it does suggest that there
may
> be some strategy that is being pursued to progress the IEEE
policy to
> include matters not identified on the March 27
agenda.
>
> Included in such later to be addressed issues may
be your proposal for
> collective negotiation of license terms.
Whether such collective
> negotiations occur ex ante (as I assume you
would prefer) or ex post, it
> would seem not to matter for the Golden
Bridges' decision apply.
>
> Similarly, mandatory rate caps,
which have also been proposed and is on
> the agenda for the March 27
meeting, may foster a far greater likelihood
> of claims such as is
the subject of the Golden Bridges case. Here, too,
> I think you would
agree from the perspective of antitrust counselling
> that while
justifications may be offered, the practical fact that even a
> rule
providing for voluntary rate caps could lead to uncontrolled
>
discussions (outside the meeting room as alleged in Golden Bridges)
that
> then are implemented in the meeting to set rates collectively.
Again,
> the fact that justifications may exist and that a rule of
reason
> analysis should be applied, or that the rule is nominally
voluntary, is
> not going to stop a claim from being asserted or the
possibility of a
> court rejecting the justifications and application
of the rule of
> reason. That risk, which as illustrated by Golden
Bridges (as well as
> the Conexant case in which TI prevailed but was
still required to
> litigate) is not fanciful or remote.
>
> When viewed in context the issue of whether to include the
definition of
> "reasonable rates, terms and conditions" as proposed,
or any definition
> of what reasonable rates and license terms will
be, in an LoA also could
> give rise to what may be alleged as a
garden variety per se unlawful
> antitrust violation. The proposed
definition is particularly problematic
> because it would impose a
standard upon patent owners that is not
> supported by law.
Notwithstanding that some commentators, as identified
> by Scott
Peterson, have discussed that from economists perspective it is
>
possible to identify value attributable to a patent itself and an
>
additional amount to the fact that the patented technology is
>
standardized, this assessment is not universally accepted, and it is
the
> very rare commentator that has suggested that patent owners
should be
> stripped of the value of their IP based upon such an
analysis. Nor
> would this theory apply in each case, as you have
acknowledged, for
> example where there is only a single patented
alternative under
> consideration for standardization. Such a step,
even in the standards
> context, also would be fundamentally contrary
to patent law.
> Accordingly, it is certainly conceivable that one
could allege that an
> SDOs adoption of such a rule constitutes
concerted action (especially
> where consensus is not the basis for
the decision). Moreover, because
> the proposed definition only
includes selective factors, and not many
> other factors that would be
relevant to a full determination of what a
> willing licensor and
willing licensee would agree to at the time of the
> negotiations, it
could be argued too that it is equivalent to a price
> fixing
agreement. Again, the purpose of this point is not to say that
> such
a claim would necessarily succeed, but rather to point out that it
>
may survive a motion to dismiss. This may not be a Golden Bridges'
type
> allegation, but I don't think the IEEE should be limiting
itself to only
> those type of antitrust theories. (This comment also
does not address
> the fact that in my view, wearing an SDO hat, this
is just bad policy
> because it would impose a rigid definition that
is not applicable to
> many situations that arise in the standards
process.)
>
> Likewise, although not related to the Golden
Bridges' decision, the
> approach of the LoA is problematic because it
could have the exact
> contrary effect than I had thought was
intended. Rather than providing
> information early in the standards
development process, it could result
> in causing patent owners to
wait until the very last minute to disclose
> IP and to submit an LoA.
This likelihood is already more probable than
> not because of the
fact that any LoA will not be binding and
> irrevocable. The very real
problem is that it may be impossible to
> identify what is an
"essential patent" until the standard is well along
> the way to being
final. Accordingly, unless a patent owner wishes to
> give a blanket
license (which as proposed would apply to all essential
> patents
whether disclosed or not, which itself reflects a fundamental
> change
from the ANSI policy), it runs the risk of having to make
> licensing
commitments without even knowing whether its IP is essential.
> If
such IP is then subjected to a collective negotiation of terms or
>
mandatory rate caps, prices for non-essential competing patents would
be
> fixed as would rates for essential patents. I think you do
understand
> the potential antitrust risk there.
>
>
Similarly, the proposed LoA's approach to Organizational Knowledge
could
> exacerbate these problems, especially for companies that
themselves are
> not members, but who's employees are members. How
would the concept of
> Organizational Knowledge as proposed even apply
in that circumstance?
> Further, how could an employee who has nothing
to do with licensing
> issues or his employer's patent portfolio be in
a position to bind his
> company, much less affiliates, successors and
assigns?
>
> Further, the proposal to make the LoA binding by
having it signed by the
> IEEE also involves antitrust issues. Such a
step clearly would allow
> the argument that the concerted action
element of a Section 1 Sherman
> Act claim is satisfied, and any
anticompetitive effects achieved through
> implementation of the LoAs,
especially under a rule of reason analysis,
> would require extensive
analysis, and resulting costs and times.
>
> I hope these
comments help you. Please understand they are not being
> offered for
any purpose other than to express what I believe may result
> in less
efficient, and thereby less procompetitive, standards
> development.
These are my views regarding the standards process, and
> should not
be ascribed to any particular company that I may or may not
>
represent. I hope you take them in that way, and that you do not
think
> that they are offered to counterbalance your positions. I do
think it
> would be a very bad result, however, if rules are adopted,
no matter how
> well intentioned, that will not accommodate all
stakeholders' interests
> in the IEEE type of open standards body, and
that will give rise to even
> the prospect of greater litigation
risks, to say nothing of liability
> risks. I think this would be
especially unfortunate if such rules are
> adopted because of a flawed
process or a failure to consider all of the
> very complex variables
that exists in standards development, as well as
> in connection with
the current state of technology, competition and
> licensing.
>
> Look forward to seeing you soon.
>
> Richard S.
Taffet, Esq.
> Bingham McCutchen LLP
> 399 Park Avenue
>
New York, New York 10022-4689
> T: (212) 705-7729
> F: (212)
702-3603
> email: richard.taffet@bingham.com
>
cell: (914) 582-2477
>
> -----Original Message-----
>
From: Gil Ohana (gilohana) [mailto:gilohana@cisco.com]
> Sent:
Thursday, March 09, 2006 7:27 PM
> To: Taffet, Richard S.; PP-DIALOG@listserv.ieee.org
>
Subject: RE: [PP-DIALOG] Application of per se rule to ex ante joint
>
conduct
>
> Thanks Richard. I'm not aware that the issue of
royalty caps, which as
> we both know is alive in ETSI, is on the
IEEE-SA agenda. I'm also not
> aware that the rules changes that
PatCom is being asked to consider, as
> you put it, "rules that will
invariably (at least allegedly) lead to
> fixing of license terms by
joint conduct." PatCom is being asked to
> consider rules that will
give patricipants in standard-setting and
> implementers of IEEE
standards more information about what terms they
> will have to accept
to practice those standards. I'm missing how that
> leads to "fixing
of license terms."
>
> On your suggestion regarding agenda
efficiency and the views you ask me
> to present, all I can say in
response is that it was you, not me, that
> posted the Golden Bridge
opinion in what could be seen as an attempt to
> raise in the minds of
PatCom members the specter of antitrust risk as a
> reason not to
favor the ex ante proposals. Further to my prior postings
> in
response, perhaps you can make your reasoning explicit. You are a
>
leading practitioner that has been engaged in standard-setting and
>
antitrust issues since for a while, and your views would, I'm sure,
be
> illuminating.
>
> Gil Ohana
> Director,
Antitrust and Competition
> Cisco Systems, Inc.
> 300 E. Tasman
Drive
> MS 10/2
> San Jose, CA 95134
> United States of
America
> Phone: +1 408 525 2853
> Mobile: +1 408 203
5301
> E-mail: gilohana@cisco.com
>
>
-----Original Message-----
> From: Taffet, Richard S.
[mailto:richard.taffet@bingham.com]
> Sent: Thursday, March 09, 2006
3:44 PM
> To: Gil Ohana (gilohana); PP-DIALOG@listserv.ieee.org
>
Subject: RE: [PP-DIALOG] Application of per se rule to ex ante joint
>
conduct
>
> I certainly agree wholeheartedly with your point
that it is important to
> consider how enforcement agencies will
consider changes in SDO rules.
> Some may be positive and some may be
negative, as I understand has been
> the reaction of the EC officials
to certain positions in ETSI.
>
> I am not too concerned with
agenda efficiency, however. I am more
> concerned that whomever is
making the decision does so on a fully
> informed basis and not to
advance a specific agenda.
>
> I think specifically when you
get into issues such as royalty caps, and
> rules that will invariably
(at least allegedly) lead to fixing of
> license terms by joint
conduct, grave concerns should exist.
>
> Likewise, I would
think that if agenda efficiency is the primary
> motivating factor
here, please do share with us your views how each of
> the proposals
that have been made will not conclusively allow any claim
> of
concerted action or an anticompetitive effect. If you can do that by
>
first of next week, we will have a basis to continue the dialog.
>
> Richard S. Taffet, Esq.
> Bingham McCutchen LLP
> 399
Park Avenue
> New York, New York 10022-4689
> T: (212)
705-7729
> F: (212) 702-3603
> email: richard.taffet@bingham.com
>
cell: (914) 582-2477
>
> -----Original Message-----
>
From: Gil Ohana (gilohana) [mailto:gilohana@cisco.com]
> Sent:
Thursday, March 09, 2006 6:17 PM
> To: Taffet, Richard S.; PP-DIALOG@listserv.ieee.org
>
Subject: RE: [PP-DIALOG] Application of per se rule to ex ante joint
>
conduct
>
> Thanks Richard. For better or worse, neither of us
is a member of the
> Patent Committee. I'm hoping that the people that
actually get to do
> the voting are monitoring this list, and they
would benefit from hearing
> your views as to why the specific legal
theory asserted by the plaintiff
> in the Golden Bridge case you chose
to post to the list is relevant to
> the votes they will be asked to
cast on the 27th. They also may benefit
> from understanding more
generally, particularly in the wake of the
> various statements
regarding the issue of ex ante disclosure rules and
> antitrust risks
that have been made by the European Commission and the
> leadership of
both US federal antitrust agencies, what role
> consideration of
antitrust risk should play in their consideration of
> the various
proposals for the changes to the IEEE-SA rules involving ex
> ante
disclosure of licensing comitments.
>
> That is not an easy
question, and it merits careful consideration from
> the members of
PatCom (after all, if you're right about the connection
> you seem to
posit between between ex ante rules and increased antitrust
> risk,
then IEEE-SA would seem to have a significant organizational
>
interest at stake in avoiding the "messy and unpredictable" process
of
> antitrust litigation). I'm hoping that you share my goal of
addressing
> those issues in advance of the meeting so that we can
proceed through
> the agenda efficiently.
>
> Best
regards,
> Gil Ohana
> Director, Antitrust and
Competition
> Cisco Systems, Inc.
> 300 E. Tasman Drive
>
MS 10/2
> San Jose, CA 95134
> United States of America
>
Phone: +1 408 525 2853
> Mobile: +1 408 203 5301
> E-mail: gilohana@cisco.com
>
>
-----Original Message-----
> From: Taffet, Richard S.
[mailto:richard.taffet@bingham.com]
> Sent: Thursday, March 09, 2006
2:57 PM
> To: Gil Ohana (gilohana); PP-DIALOG@listserv.ieee.org
>
Subject: RE: [PP-DIALOG] Application of per se rule to ex ante joint
>
conduct
>
> Gil
> What's your rush? What conclusions
will you draw? I am not sure what
> the basis will be to conclude
anything one way or the other, or what
> signficance it will have in
what the IEEE is considering on the merits.
> If there is a need for
you to find out more information on a particular
> schedule, give me a
call and we can schedule a time to discuss each of
> the proposals and
each of their implications. If it is important to
> you, we can try to
schedule such a call in advance of the March 27
> meeting Let me
know.
>
> Richard S. Taffet, Esq.
> Bingham McCutchen
LLP
> 399 Park Avenue
> New York, New York 10022-4689
> T:
(212) 705-7729
> F: (212) 702-3603
> email: richard.taffet@bingham.com
>
cell: (914) 582-2477
>
> -----Original Message-----
>
From: Gil Ohana (gilohana) [mailto:gilohana@cisco.com]
> Sent:
Thursday, March 09, 2006 5:28 PM
> To: Taffet, Richard S.; PP-DIALOG@listserv.ieee.org
>
Subject: RE: [PP-DIALOG] Application of per se rule to ex ante joint
>
conduct
>
> Richard, why wait for the meeting? You have the
chance to enlighten all
> of us now.
>
> To frame the
question again, I'm not asking you generally for your view
> of why ex
ante disclosure rules increase the risk that SDOs and
> companies
participating in standard-setting will face antiturst
> ligitation.
I'm going back to the Golden Bridge decision you chose to
> bring to
the attention to the list and asking you to explain which of
> the
specific rules changes that IEEE-SA's Patent Committee would
>
increase the risk that IEEE-SA or participants in IEEE-SA's
technical
> working groups would face group refusal to deal claims.
It's a simple
> enough question, and if your response is that you'll
need all the time
> between now and March 27 to think of an answer,
then we'll draw the
> appropriate conclusions. I'm optimistic (there I
go again) that we
> won't have to wait that long.
>
> Gil
Ohana
> Director, Antitrust and Competition
> Cisco Systems,
Inc.
> 300 E. Tasman Drive
> MS 10/2
> San Jose, CA
95134
> United States of America
> Phone: +1 408 525
2853
> Mobile: +1 408 203 5301
> E-mail: gilohana@cisco.com
>
>
-----Original Message-----
> From: Taffet, Richard S.
[mailto:richard.taffet@BINGHAM.COM]
> Sent: Thursday, March 09, 2006
2:14 PM
> To: PP-DIALOG@listserv.ieee.org
>
Subject: Re: [PP-DIALOG] Application of per se rule to ex ante joint
>
conduct
>
> I am sure the PatCom chair will afford us plenty of
time to discuss how
> the IEEE proposals could raise the same type of
claims as alleged in the
> Golden Bridges case. I think you are also
truly the optimist in
> thinking that rules, which have already
engendered significant debate
> when merely being proposed, will lead
to anything but more litigation.
> Words have a funny way of being
interpreted in interesting ways in the
> context of lawsuits.
>
> Richard S. Taffet, Esq.
> Bingham McCutchen LLP
> 399
Park Avenue
> New York, New York 10022-4689
> T: (212)
705-7729
> F: (212) 702-3603
> email: richard.taffet@bingham.com
>
cell: (914) 582-2477
>
> -----Original Message-----
>
From: Gil Ohana (gilohana) [mailto:gilohana@cisco.com]
> Sent:
Thursday, March 09, 2006 5:10 PM
> To: Taffet, Richard S.; PP-DIALOG@listserv.ieee.org
>
Subject: RE: [PP-DIALOG] Application of per se rule to ex ante joint
>
conduct
>
> Thanks Richard. Recognizing your point that the
3GPP standards are
> being revised, what Golden Bridge has alleged is
a group refusal to deal
> by a number of large potential licensees,
effectuated through an
> informal agreement reached in what the
opinion terms is an "offline
> session." I'm still not seeing the
connection between any of the
> proposed rules changes that IEEE-SA is
considering and the conduct
> alleged in Golden Bridge. Nothing about,
for example, permitting
> patentees disclosing essential patents to an
IEEE-SA working group to
> state a "not to exceed" royalty or
attaching to their LoA a binding
> licensing commitment would in any
way increase the exposure that IEEE-SA
> or participants in IEEE-SA
working groups face under the antitrust laws
> from the kinds of claim
asserted by Golden Bridge.
>
> So I go back to the point made
in my earlier e-mail: are you just trying
> to remind us that
participants in standard-setting face antitrust risk?
> Or are you
trying to argue that there is something specific in the
> proposed
IEEE-SA rules changes that the Patent Committee is to consider
> in a
few weeks that increases the risk IEEE-SA and participants in
>
IEEE-SA standards working groups face from group refusal to deal
claims?
>
> It's easy enough to mention ex ante and antitrust
risk in the same
> sentence and hope that people associate the two.
But, after the
> endorsement of ex ante disclosure rules provided both
in Chairman
> Majoras' speech and in the press release the European
Commission issued
> in December following the change to ETSI's rules,
it would be helpful to
> the debate if you could provide a more
specific causal linkage between
> the rules that IEEE-SA is
considering adopting and increased antitrust
> risk to IEEE-SA or its
members.
>
> One more thing: I agree with you that litigation
is "messy and
> unpredictable." Of course, a major benefit of the
adoption of ex ante
> rules is that they avoid the need for companies
seeking to implement a
> standard to avoid the need to litigate patent
disputes with patentees
> that seek to define what a "reasonable"
royalty is expansively. Those
> cases, too, can be "messy and
unpredictable."
>
> Gil Ohana
> Director, Antitrust and
Competition
> Cisco Systems, Inc.
> 300 E. Tasman Drive
>
MS 10/2
> San Jose, CA 95134
> United States of America
>
Phone: +1 408 525 2853
> Mobile: +1 408 203 5301
> E-mail: gilohana@cisco.com
>
>
-----Original Message-----
> From: Taffet, Richard S.
[mailto:richard.taffet@bingham.com]
> Sent: Thursday, March 09, 2006
1:45 PM
> To: Gil Ohana (gilohana); PP-DIALOG@listserv.ieee.org
>
Subject: RE: [PP-DIALOG] Application of per se rule to ex ante joint
>
conduct
>
> Not sure your very careful attempt to distinguish
the import of this
> case from the discussion of joint ex ante is
terribly meaningful, or
> would be found persuasive by either a court
or a plaintiff's lawyer who
> seeks to address ex ante conduct that
eliminates the inclusion of a
> patented technology in a standard or
deprives a patent owner of
> flexibility in licensing terms. Not
suggesting that the allegations
> of the case have merit, but there
are quite a number of companies that
> now are spending a lot of money
and time litigating for what might be
> considered competitively
benign conduct.
>
> Happy to discuss these points further, but
one fact I think you will
> agree is that especially in the 3GPP
context, standards are continuously
> being revised, and there is no
simple conclusion that can be reached
> when a standard is final. So,
in connection with this specific case,
> the elimination of of Golden
Bridge's technology was part of the
> evolution of the 3GPP
standard.
>
> Accordingly, the key take away might be that nice
theories can always be
> justified, but legal claims and litigation
are messy and unpredictable
> -- which leads to high costs and less
efficiency in standards
> development.
>
> Speak to you
soon.
> Richard S. Taffet, Esq.
> Bingham McCutchen
LLP
> 399 Park Avenue
> New York, New York 10022-4689
> T:
(212) 705-7729
> F: (212) 702-3603
> email: richard.taffet@bingham.com
>
cell: (914) 582-2477
>
> -----Original Message-----
>
From: Gil Ohana (gilohana) [mailto:gilohana@cisco.com]
> Sent:
Thursday, March 09, 2006 4:34 PM
> To: Taffet, Richard S.; PP-DIALOG@listserv.ieee.org
>
Subject: RE: [PP-DIALOG] Application of per se rule to ex ante joint
>
conduct
>
> Richard, thank you for providing the Golden Bridge
opinion. As I read
> the opinion, it stands for the (uncontroversial)
position that a group
> refusal to deal among competitors that
collectively have market power
> can violate Section 1 of the Sherman
Act. Aside from the fact that the
> particular group refusal to deal
alleged happened in the context of
> standard-setting, I'm having
trouble understanding how the case relates
> to (as the title of your
e-mail states) "ex ante joint conduct". Per
> the facts of the
opinion, the discussion among the defendants that led
> to Golden
Bridge's technology being dropped as an optional feature of
> the 3GPP
standard occurred after the 3GPP standard had already been
> approved
by 3GPP. See Opinion at 2 ("In 1999 cPCH [Golden Bridge's
> patented
technology] was adopted by 3GPP as an optional part of the 3GPP
>
standard."). The allegedly anticompetitive acts Golden Brdge is
>
complaining of did not occur until years later.
>
> If your
goal is to remind participants in IEEE standard-setting that
>
antitrust issues swirl around standard-setting, then the Golden
Bridge
> opionion is a useful reminder of that point. But if (as I
suspect from
> the title of your e-mail) your goal is to suggest that
the antitrust
> risks standards bodies or their participants face are
increased by the
> adoption of those bodies of ex ante disclosure
rules, then I must admit
> that the support the Golden Bridge opinion
provides for that proposition
> is escaping me.
>
> Gil
Ohana
> Director, Antitrust and Competition
> Cisco Systems,
Inc.
> 300 E. Tasman Drive
> MS 10/2
> San Jose, CA
95134
> United States of America
> Phone: +1 408 525
2853
> Mobile: +1 408 203 5301
> E-mail: gilohana@cisco.com
>
>
-----Original Message-----
> From: Taffet, Richard S.
[mailto:richard.taffet@BINGHAM.COM]
> Sent: Thursday, March 09, 2006
11:27 AM
> To: PP-DIALOG@listserv.ieee.org
>
Subject: [PP-DIALOG] Application of per se rule to ex ante joint
conduct
>
> The recent decision from the United States District
Court for the
> Eastern District of Texas is another example where
joint ex ante
> standards conduct relating to IP was alleged to
violate the antitrust
> laws, including under a per se theory. In this
case, defendants' motion
> for summary judgment was denied, including
on the ground that per se
> treatment might be appropriate. Even
without the issue of whether the
> conduct should be considered under
a per se or rule of reason approach,
> the fact is the case is now
going to trial and will involve all of the
> costs and uncertainties
that necessarily result.
>
>
<<show_case_doc.pdf>>
> Richard S. Taffet,
Esq.
> Bingham McCutchen LLP
> 399 Park Avenue
> New York,
New York 10022-4689
> T: (212) 705-7729
> F: (212)
702-3603
> email: richard.taffet@bingham.com
>
cell: (914) 582-2477
>
>
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