RAND
I very much appreciate the efforts and accomplishments by PatCom at our
meeting in NJ on Monday, March 27th. However I believe there remains a
serious problem which PatCom has to address: that "RAND" is a term
without meaning. It is apparently not feasible at this time for PatCom
to reach agreement on the meaning of "reasonable". So, I would propose
PatCom consider a less lofty goal such as the following for inclusion in
the LoA to explain to all the minimum attributes of RAND.
"What is RAND? RAND are license terms that are objectively fair and
practical to both the licensees and the Patent Holders. RAND does not
mean that all licensees will receive the same terms and conditions.
Patent Holders may change their licensing provisions over time. Late
comers may pay more than early adopters. Those with significant patent
portfolios to trade may get more favorable licenses than those lacking
such assets. There may be reasonable grant backs, reciprocity
requirements and other provisions too numerous to enumerate. Patent
Holders may refuse to license essential claims for use outside of the
standard. And of course, Patent Holders may refuse to license
non-essential patent claims at all. However, RAND does mean that a fair
license to essential claims will always be available to all desiring to
practice the standard and that Patent Holders will not refuse to license
or seek to enjoin anyone for using their essential patent claims to
practice the standard."
Some will argue that the foregoing statement has no basis in law. To
that I would simply say the LoA is a contract to which Patent Holders
are voluntary parties. Others will argue that the foregoing statement
requires Patent Holders to give up a fundamental patent right - the
right to exclude - and therefore the foregoing statement is unfair to
technology creators. I would respond that no Patent Holder has a
"right" to have its patented solution included in what is intended to be
an open industry standard; conditioning inclusion upon a RAND license
commitment that waives the injunction remedy ensures no one is
ultimately excluded from the market altogether. This is a responsible
way for the IEEE to protect against actions that could undermine its
longstanding open standards commitment. I would also note that I am
Hewlett-Packard's Director of Intellectual Property; that HP has over
15,000 U.S. patents and an even larger number of non-U.S. patents; and
that HP has signed numerous LoAs over the years and expects to sign more
of them in the future. So HP is well aware of what we would be giving up
if the IEEE were to require acceptance of such a provision by those
signing LoAs.
Jeffery Fromm
Vice President, Deputy General Counsel &
Director of Intellectual Property
Hewlett-Packard Company