Re: [PP-DIALOG] Additional Suggested Revisions to IEEE-SA Patent Policy

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Colleagues,

We would like to know if PatCom is open to and is going to process additional late comments.

Additionally, we would like to respond to Gil’s earlier comments on our suggestion number 13 in the formal commenting process which we read with interest. We have not seen the PP-DIALOG email list used before to respond to comments included in the spreadsheet based commenting procedure of PatCom. We would be happy to discuss our safe harbour proposal and Gil’s comments further in the PatCom meeting in March and request that this item be specifically added to the agenda to enable a full and open discussion on the subject.

Notably, the points Gil raises have been discussed at length in other fora such as ETSI and ITU where the Balanced Safe Harbour Approach has been developed over many months. That development process was possible because those fora use open processes for discussion and development of potential changes to IPR Policies. Gil’s comments mischaracterise the Balanced Safe Harbour Approach in several ways that we will be happy to explain in the open discussion we recommend in the upcoming PatCom meeting, or by e-mail if necessary.

As many of the people who have attended recent PatCom meetings know, the open discussions on injunctions in these other fora have for the past year centered on two proposals: the Balanced Safe Harbour Approach (“BSHA”) and a proposal its proponents have called “Proposed Exceptions to General Rule Prohibiting Injunctions” (the “Rule Prohibiting Injunctions”). Neither approach has yet to gain consensus, although the BSHA has consistently enjoyed more support than the Rule Prohibiting Injunctions. In addition, proponents of the BSHA have made substantial modifications to the proposal over time in response to comments and criticisms from other participants. Proponents of the Rule Prohibiting Injunctions, in contrast, have not made serious efforts to address the key concerns raised by others about that proposal; and, thus, the proposal has remained largely unchanged over the past year.

The proposed revision to the IEEE Patent Policy to which our suggestion 13 was addressed is, in essence, the Rule Prohibiting Injunctions. Again, as many of us know, that proposal has been subject to substantial criticism as being unbalanced and enabling misconduct by potential licensees. For example, the proposal essentially prohibits injunctions when a potential licensee is flatly refusing to negotiate and is exploiting inefficiencies in the litigation system to gain an unfair competitive advantage over companies that respect the IPR rights of others. The proposal also notably fails to satisfy criteria set out in the Speaking Points delivered by the European Commission in the ITU and in ETSI which call for a safe harbour from injunctions for a willing licensee who commits to accept adjudication of F/RAND terms and conditions by a court or arbitrator.

It is surprising that an IEEE committee whose members are charged with acting not in their self-interest or the interest of their employers but rather in the interest of IEEE and the public welfare would make such a flawed proposal. Such a result highlights the danger inherent in a lack of open discussion in bodies discussing revisions to IPR Policies.

With respect to the specific comments regarding the BSHA, observers who have participated in the open discussions held elsewhere will recognize that these issues have largely been raised before and ways to address legitimate concerns are available. If PatCom seeks to make this mailing list a forum for such discussions we will respond here, and we will also submit our own comments on the proposed draft and others’ proposals with the expectation that proponents of those proposals will similarly respond. A better approach, we believe, would be to open the ad hoc group to all interested parties. The many profound disagreements over whether there should be revisions to the IEEE Patent Policy and, if so, what those revisions should be, are best discussed in an open forum where proposals (including textual proposals) from all interested parties are welcome and discussed and in which efforts are made to achieve consensus.

We ask that PatCom reply to the list as to whether it will open the ad hoc or whether the members of PatCom responsible for proposing revisions will respond on this list to comments on the draft changes.

Thanks

Dan