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I, as will many other members come Monday
the 27th, agree with Michelle. The idea of defining RAND as proposed is
unnecessary and disproportionately favors one business model over another –
I refer folks to the in depth discussion we submitted last week. This alone is
a very good reason for an SDO to not get involved, or find a better approach. This
is even more important when a consensus of the concerned membership does not
support such changes. We do not even need to get to the legal liabilities argument
and the various opinions on the matter (in the end, only one opinion matters:
outside counsel for IEEE.) Still, the IP value an engineer needs to
make a cost/benefit decision goes far beyond the simplicity of the price paid.
The terms of a license can be more important than the price, evidenced by the
folks who follow a business plan using an RF strategy. To them, every LOA will
indicate RF. Of course, this information can already be found on most of these
company’s websites. So how about the impact on the other part of the IEEE
membership, the non-RF folks? Or is this to be minimized or not considered? From: Michelle Lee
[mailto:mleelaw@nortel.com] Hi
Scott, With
all
due respect, I disagree that the proposed definition of
"reasonable rates or terms" is necessary or
desirable for IEEE. We do not support or accept this
definition. (1)
The definition of "reasonable" is not a clarification. It is
a conceptual
legal bound on royalties that can be earned for
any IEEE standardized technologies and is an imbalance in favour of user
markets. (2)
IEEE
cannot dictate a licensing commitment by agreement or dictate
what
licensing commitment patent holders make. In my view, that is not
voluntary. (3)
The proposed standard is based on a philosophical view that wrongly
assumes licensing on (4)
How can a new reasonable royalty test not alter rights,
remedies or laws when it overrides the judicial legal test
for
reasonable royalty under Georgia-Pacific law? IEEE does not have
the authority to impose or agree upon a new test to assess
reasonable royalties for patent infringement and rights to use standardized
technologies. (5)
This test inappropriately treats all inventions alike (at the minimum) without
regard to the advancement of the particular technology and its value add.
Limiting value and royalty earnings to less than technology owners can expect
to earn in the market for the technology is unreasonable by definition.
(7)
A definition like this will only serve to keep out advances or superior
technologies from IEEE standards. I don't see the benefits to IEEE
standards (which are trying to become more international) to ask for an
agreement or policy that eliminates or reduces incentives to attract the best
technologies
to IEEE standards and the willingness of patent holder
developers to make available licenses in the first place. (8)
This new test will not reduce litigation and will likely drag IEEE into legal disputes
over whether the test is fair, unbiased and appropriate or the terms are
reasonable under it. (9)
The
vast majority of licenses are more likely pro-competitive.
How
many disputes or complaints has IEEE received or have there been over
"reasonable royalty" involving IEEE standards? Kind
regards, -----Original
Message----- I
have heard concerns expressed about some sort of external impact of providing
more specificity as to what is meant by ' The
proposed policy change provides greater clarity as to what licensing commitment
the IEEE is asking patent owners to voluntarily make. It
does not change the meaning of that phrase in any more global context; for
example, the proposed policy change does not purport to change the law
concerning the measure of patent infringement damages. ______________________________
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