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Don Wright
don@lexmark.com
f.wright@ieee.org / f.wright@computer.org
Director of Standards
Lexmark International INCITS Executive
Board Vice-Chair
C14/082-3
IEEE SA Standards Board Past Chair
740 New Circle Rd IEEE
SASB Patent Committee Chair
Lexington, Ky 40550 Member: IEEE
SA Board of Governors
859-825-4808 (phone) Member: IEEE CS
SAB & W3C AC
603-963-8352 (fax) Director,
IEEE-ISTO
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| "Michelle Lee" <mleelaw@nortel.com>
Sent by: PP-DIALOG@ieee.org 12/05/2006 05:20 PM |
To: "Hoyler, Susan" <shoyler@QUALCOMM.COM>, <PP-DIALOG@listserv.ieee.org> cc: Subject: RE: [PP-DIALOG] Business Review Letter |
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Don Wright
don@lexmark.com
f.wright@ieee.org / f.wright@computer.org
Director of Standards
Lexmark International INCITS Executive
Board Vice-Chair
C14/082-3
IEEE SA Standards Board Past Chair
740 New Circle Rd IEEE
SASB Patent Committee Chair
Lexington, Ky 40550 Member: IEEE
SA Board of Governors
859-825-4808 (phone) Member: IEEE CS
SAB & W3C AC
603-963-8352 (fax) Director,
IEEE-ISTO
***************************************************************************
| "Michelle Lee"
<mleelaw@nortel.com>
Sent by: PP-DIALOG@ieee.org 11/07/2006 04:58 PM | To: <PP-DIALOG@listserv.ieee.org> cc: Subject: RE: [PP-DIALOG] Business Review Letter |
Don, Clare, Michael:
Thank you for keeping us advised and asking for input into the Business
Review Letter.
I had assumed that at least SASB officers would see and pre-approve the
DOJ review letter about the IEEE SA policy, and that once the letter was
in a form that's near ready for submission to the DOJ, it would be public
and not privileged. Is that not the case? I find it difficult to provide
informed input without seeing the review letter request that is proposed.
In any case, here are topics we would like addressed in the letter for
DOJ guidance on IEEE proposed policy and process:
1. IEEE SA experience of abuse restricting use of IEEE
standards - findings of patent licensing terms held unreasonable
contrary to RAND, the extent of anti-competitive hold-up of IEEE standards
and the extent of IEEE member firms that have caused significant restriction
of use of an IEEE standard.
2. Rate conditions on adoption without full transparency
for evaluation - Unlike VITA proposed policy, IEEE SA does not
have a patent disclosure policy. Declaration of ex
ante terms are not based on patent disclosure or limited to member
disclosed essential patents or applications. Voluntary maximum rates
and licensing terms conditioned on selection of member's technology may
be declared without patent disclosure and knowing the likelihood of patent
validity, essentiality or minor vs. core feature coverage of the IEEE standard
at issue. Further to that, we would like to know DOJ position with respect
to:
a) Member declaration and IEEE SA acceptance of ex ante assurances
of maximum rates for member essential patent claims to an IEEE standard,
without known essential IPR position by the member making the licensing
declaration for the standard.
b) Blanket maximum rates to a standard (portion of product price) vs. maximum
rates to essential claims of a disclosed patent(s) for a single patented
technology to a feature.
3. Guidance about how to absolutely avoid anti-competitive
purposes or effects in operation of the ex ante royalty communications
in IEEE SA conduct given the severe penalty consequences
Unlike VITA, IEEE SA process is not limited to a particular standard. That
makes ex ante royalty declaration processes dramatically more complex
and uncertain in IEEE. IEEE SA would allow and accept ex ante T&C
conditions on numerous IEEE SA standards with widely varying technical
objectives, scope, markets, maturity levels, participants and IPR landscapes
(irrespective of standardization). We would like DOJ guidance whether
and how IEEE SA can properly carry out process to avoid anti-competitive
effects and with respect to competitors setting their maximum rate conditions
on IEEE standards adoption in this context, including:
a) When complex interrelated, complementary or premature technologies are
involved, any of which may not have multiple substitutes
b) When component features will be used no matter which technology solution
is selected
c) When selection of the standard by owners of technologies competing for
the standard based on maximum royalty will not amount to technology price
fixing or bid rigging of terms for the patented technology selected.
d) When selection by competing implementer participants (but not necessarily
all market users) based on maximum rates declared ex ante will not
directly or indirectly/expressly or impliedly fix a portion of product
price they will sell
e) If the mere exchange of voluntary royalty through IEEE process and selection
of technology will amount to adherence to the announced price
f) Whether prohibitions on discussions are enough to help avoid signalling
about appropriate rates between the patent holder and WG members in IEEE
standards setting process.
g) How to avoid WG boycotts in the process and not preclude firms from
licensing alternatives, complements or non-essential patent technology
based on selection of a technology with a declared maximum royalty
h) How to prevent manipulative or misleading advanced pricing schemes with
declared terms that lock in technology selection
i) When a person declaring royalty conditions may dominate the WG selection
process or have market power, and including if others copy or discount
their maximum royalty conditions, irrespective of actual value of contributions
4. Group discussions inside the IEEE Standards context
or induced by IEEE process
- Communication of LOA licensing terms to Working Groups enticing
but prohibiting discussion amongst participants in meetings, including
when the WG faces no immediate or actual known risk of anti-competitive
hold-up
- backroom licensing term discussions and information sharing amongst
participants outside open WG process
5. Impacts on economic incentives and pro-competitive
benefits of policies that attract wide open patent holder membership and
contribution to IEEE national/multi-national standards
LOA assurances of licenses on non-discriminatory basis are a voluntary
promise of a patent holder that do not relinquish granted patent
rights. The more open the patent policy is to encourage access to patented
essential technologies, the more potential to sustain the pro-competitive
benefits of IEEE standardization. The DOJ review letter needs to outline
impacts on future IEEE membership and contribution of patented technologies
to IEEE standards that could reduce competition between technology rivals
in IEEE standards setting and between downstream implementers, and which
can increase rather than lessen the potential for hold-up risks.
6. Impacts on benefits of ex ante and ex post licensing
of technology
a) Selection of technologies based on ex ante maximum pricing replacing,
or at a minimum reducing incentives for, bilateral licensing negotiations
on reasonable terms and non-discriminatory basis.
b) How will bid competition for an IEEE standard by patent holders not
reduce price competition between licensees on a non-discriminatory basis
and not limit licensing flexibility for use of the patented technology
that is proposed for adoption or that is selected as the IEEE standard.
c) Refusal or non-availability of licenses from essential patent holders
on less than their declared maximum rate
7. Soliciting affirmative non-awareness of IPR assurances
based on reasonable and good faith inquiry of participants when
there can't be actual knowledge of all patent claims of patent portfolios
to verify these promise statements even in good faith and vis-a-vis Dell
Thank you,
Michelle
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Don Wright
don@lexmark.com
f.wright@ieee.org / f.wright@computer.org
Director of Standards
Lexmark International INCITS Executive
Board Vice-Chair
C14/082-3
IEEE SA Standards Board Past Chair
740 New Circle Rd IEEE
SASB Patent Committee Chair
Lexington, Ky 40550 Member: IEEE
SA Board of Governors
859-825-4808 (phone) Member: IEEE CS
SAB & W3C AC
603-963-8352 (fax) Director,
IEEE-ISTO
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