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As outside counsel to the IEEE-SA, I very much appreciate all of the feedback we have received on this listserve. We have been summarizing the comments and will be working with PatCom, the Standards Board and ultimately the Board of Governors who will approve any changes to make sure that all viewpoints are considered.
I did want to address one comments that several contributors have made regarding the proposal to add IEEE as a party to the LOA. In particular, both Richard Taffet and Qualcomm questioned the origin of the proposal and the lack of transparency about the proposal. In fact, Qualcomm stated, "Perhaps those advocating in favor of this position would also agree to indemnify IEEE and pay all legal expenses if this were to arise? ;>)"
I am the one who proposed adding IEEE as a party to the LOA. While there may be others who support such a proposal, they have not indicated so to me or to anyone else at IEEE.
I did so to respond to several attendees at the PatCom meeting in September 2005 who questioned whether the LOA was a binding contract or enforceable. IEEE has always operated under the assumption that the LOA was binding and enforceable (if it isn't, it is worthless) but given that several attorneys representing working group members questioned its binding nature at the September meeting, I thought we should be clear about it.
While IEEE does not intend to enforce the terms of the LOA for its own benefit, the LOA only has meaning if all users and implementers of the IEEE Standard have the right to enforce its terms which can be best achieved by making them third party beneficiaries of the LOA. Under NY state law (like most state laws), to succeed on a contract claim as a third-party beneficiary, a plaintiff must establish: (1) that the existence of a valid and binding contract between other parties; (2) that the contract was intended for plaintiff’s benefit; and (3) that the benefit is immediate, and not incidental, so as to indicate duty to compensate the plaintiff if the benefit is lost. Wainwright v. Matrix Assets Advisors, Inc., 2005 U.S. Dist. LEXIS 14928, 9 (D.N.Y. 2005). Thus, I wanted to make it clear that the LOA was a contract so that the users and implementers would have rights as third party beneficiaries.
I appreciate everyone's concern about IEEE being pulled into any litigation over the terms of the LOA and of course, would appreciate any ideas anyone has for ensuring that users and implementers of IEEE Standards have the right to enforce the terms of the LOA without making IEEE a party.
I look forward to the meeting on Monday.
Claire
Claire
Claire H. Topp, Esq.
Dorsey & Whitney LLP
50 South Sixth Street
Minneapolis, Minnesota 55402
(612)343-8278 (phone)
(612)340-2868 (facsimile)
topp.claire@dorsey.com
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