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Dear Colleagues, In response to the submission from Qualcomm, Nokia, and Blackberry, I submitted the e-mail below to members of the Standards Association Standards Board yesterday afternoon. Any questions would
be welcome. Best regards, Gil Ohana **********************************************************
From: Gil Ohana (gilohana) To the Members of the Standards Board: Earlier today, I was forwarded the e-mail sent to all of you by Fabian Gonnell of Qualcomm on behalf of Qualcomm, Nokia (including its wholly owned subsidiary Nokia Solutions and Networks), and Blackberry. The e-mail makes
a number of allegations regarding the process that the Standards Association Patent Committee has used to evaluate potential changes to the provisions of the IEEE Standards Association By-Laws governing the interplay between patented technologies and standards
created by IEEE. Each of Mr. Gonnell's allegations is false. His communication with the Standards Board is an effort to throw mud at the IEEE and individual participants at the Standards Board in the hope that some of it will stick. By
attacking individuals, Qualcomm and its co-submitters hope to create the impression that the process in the Patent Committee has been procedurally suspect, and therefore that it should not proceed and that the vote they expect to take place at the meeting
next Monday, following a review that has now lasted a year, should be delayed. The IEEE Standards Association began its current effort to examine its intellectual property rights policy following public statements by law enforcement officials at the United States Department of Justice suggesting a number
of modest steps standards development organizations could take to prevent owners of patents essential to implement standards from extracting super-competitive licensing terms, to the detriment of implementers of standards and their customers. That effort
enjoys the support of Cisco and numerous companies that regularly participate in the development of IEEE standards and contribute their patented technology for use in those standards. Those companies have experienced first-hand the threat of injunctions that
would prevent them from selling products that implement IEEE standards, a threat Qualcomm, Blackberry and Nokia want to preserve. The process the Patent Committee has used is familiar to developers of IEEE standards. A committee, in this case the Patent Committee, has prepared proposed text, which it has submitted to participants on a list-serve (open,
I believe, to anyone). The list-serve participants have been invited to provide written comments on the draft. Each comment submitted has been reviewed and each has received a substantive response from the membership of the Patent Committee. With each round
of substantive responses, a revised draft has been circulated. The process has been repeated a number of times. I believe that the draft that will be discussed at the Patent Committee meeting on Tuesday will be the 5th version, but the members of the Patent
Committee will know better. The review of comments has been conducted by the six members of the Patent Committee, who represent a range of companies, including one company (Ericsson) that has a significant patent licensing business of its own and that
has submitted numerous comments critical of the process. In addition to the review of written comments, there have been four meetings of the Patent Committee at which company representatives wishing to address the committee have been invited to share their
views. The fifth meeting will be on Tuesday of next week. As Mr. Gonnell notes, the Committee has required specific text edits to be submitted in writing. That has the helpful benefit of avoiding ambiguity regarding the changes particular participants have
requested. As Mr. Gonnell also notes, the chair of the Patent Committee has reserved the right to limit the number of speaking opportunities at the Patent Committee meetings in order, one presumes, to avoid any particular speaker from seizing a disproportionate
share of time at the microphone. Mr. Gonnell fails to note that the chair has nevertheless permitted participants at each meeting (including Mr. Gonnell himself) to speak numerous times at particular meetings and has not thus far prevented anyone from speaking
as often as he or she would like. From early in the discussions at the Patent Committee, a consistent theme of the comments from Qualcomm and its co-submitters is that the process suffers from a lack of fairness. It's clear that Qualcomm opposes many of
the changes that are under discussion. Those changes will, among other things, limit the ability of companies like Qualcomm to use the threat of seeking injunctions for patents they have already committed to license on RAND terms to obtain unreasonable terms
from implementers of IEEE standards who are facing the risk of having the products and services they sell excluded from the market. It's equally clear that the process enjoys support from many other participants in IEEE standards development. Qualcomm and
its co-submitters appear to believe that any process that considers changes to the text of the IEEE-SA By-Laws that they oppose must be procedurally suspect. Of course, just as participants in an IEEE technical working group are free to decide to accept or
reject particular contributions, the members of the Patent Committee are free to accept or reject particular editorial suggestions. Likewise, Mr. Gonnell's statement that "there is no due process check against arbitrary treatment of comments as commenters have no recourse if their comments have been rejected by the Ad Hoc, or if they believe they have
been treated unfairly" does not stand up to scrutiny. Unlike at other standards development organization where IPR policy discussions have not used a written comment policy, there is an extensive written record consisting of the comments and the Patent Committee's
disposition decision that any member of the Standards Board is free to review in deciding whether Qualcomm's concerns have any merit. This points to one significant advantage of the way the IEEE Standards Association has conducted its review of its intellectual
rights policy versus similar processes underway at other standards bodies: the IEEE process has relied on written comments and written responses, not verbal comments that are (or are not) captured in meeting minutes. Members of the Standards Board can see
for themselves whether the many comments submitted by Qualcomm, Blackberry, Nokia, and other participants were dealt with fairly by the Patent Committee. In one of several weak arguments, Mr. Gonnell points to the relative rate of different disposals of comments submitted by different companies. That argument ignores the fact that a common theme of the comments submitted
by Qualcomm and the other co-submitters were to attack the process and the participants in the process, just as Mr. Gonnell has done in his e-mail to the Standards Board. For example, in the first round of comments, in response to the initial draft released
by the Patent Committee, Mr. Gonnell's colleague Dan Hermele began one of the 122 comments he submitted by stating that the proposed changes "suggests the possibility that members of the drafting group are representing specific commercial interests, or that
the potential for a conflict of interest exists" (Comment 105; similar text appears in comments 12, 30, 57, 71, and 89).
Members of the Standards Committee should decline Qualcomm's invitation to confuse rejection rates with the absence of due process. As the language quoted above suggests, Qualcomm and other companies critical of proposed
revisions have commented extensively, but have made relatively few specific suggestions for changes. Not surprisingly, the committee has not been swayed by broadside attacks on the drafting process, a description that fairly characterizes many of the comments
Qualcomm and others have submitted. Comments that propose specific text edits (and, contrary to one of Qualcomm's assertions, comments made in the form of redlines to specific provisions in the draft have been submitted successfully) have enjoyed a higher
approval rate. In other words, the Committee has been more inclined to accept constructive proposals with specific language, and less inclined to accept attacks on them and the work they are doing. This should not be a surprise to Mr. Gonnell or anyone else. The not-so-hidden agenda behind the e-mail sent by Qualcomm to sow fear, uncertainty, and doubt in the minds of the members of the Standards Board that may soon be asked to vote on a set of changes approved by the Patent
Committee. The Standards Board members should look through the mud Qualcomm is throwing to see the truth: the process of consideration of proposed changes to the patent-related provisions of the By-Laws has been open and transparent. Qualcomm and its co-submitters,
like other participants in the process, have had extensive opportunities to communicate their views to the members of the Patent Committee, both at the Patent Committee meetings and through the submission of comments. And the disposition of comments is available
for any Standards Board member to review. What they will see in that review is a careful effort to consider comments individually, a process that has led to numerous changes to the draft originally circulated in mid-2013. Qualcomm and its co-submitters may
disagree with portions of the resulting draft, but the test of whether a process is fair is not whether particular companies agree with the outcome. Best regards, Gil Ohana Cisco Systems From: Gonell, Fabian [mailto:fgonell@xxxxxxxxxxxx]
Dear Colleagues, Below please find an email I transmitted on behalf of the signatory companies (Qualcomm, Nokia, NSN, and Blackberry) to the members of the SASB yesterday morning.
Best regards, --Fabian From: Gonell, Fabian
Dear SASB Members, The undersigned companies write regarding proposed revisions to the IEEE-SA patent policy, which we
understand may be presented to SASB for a final vote on June 12, 2014, to document our continuing objection to the process followed by PatCom, and to request the intervention of the SASB. The process has been wholly inconsistent with the principles of “consensus,
due process, openness, and balance” that the SASB is tasked with upholding. See
http://standards.ieee.org/about/sasb/.
PatCom has been developing revisions to the IEEE-SA Standards Board Bylaws which, if adopted, would fundamentally and radically change the IEEE-SA patent policy.
These revisions are substantially similar to revisions proposed to the patent policies of other standards organizations such as ETSI and ITU-T which have been discussed at great length over the last 2 years but are highly controversial and have not met with
majority let alone consensus support in those organizations. These proposed revisions have not been adopted in any standards organization in the world. Adopting these revisions in IEEE-SA would have a profound impact upon IEEE standards and the IEEE standards
process. In our view, the proposed revisions are fundamentally unbalanced and represent the commercial interests of only a subset of IEEE-SA members to the detriment of others. Some members may decide to reduce participation or withdraw from IEEE-SA altogether,
no longer submit contributions, or not file LoAs. This could result in a reduction in the quality of IEEE standards, put more of a patent focus rather than technical focus in the technical groups, and increase the uncertainty surrounding the patents relating
to a standard. Due to this profound impact, it is extremely important that IEEE-SA and its subgroups fully understand all the implications of this level of change in the patent policy and fully adhere to “consensus, due process, openness, and balance” in developing
and deciding on whether to adopt these revisions. We have at least the following specific concerns regarding the processes followed by PatCom: Composition of the PatCom Ad Hoc and Lack of Balance The Ad Hoc group - the only avenue through which PatCom is currently accepting proposed revisions
to the IEEE patent policy - is restricted to persons selected by Chairman Law. This contrasts with previous practice, in which ad hocs to PatCom were open to all interested parties (see, e.g.,
http://grouper.ieee.org/groups/pp-dialog/email/msg00229.html).
Indeed, past ad hoc committees considering revisions to the IEEE patent policy have included much broader and balanced participation (see, e.g., PatCom Meeting Minutes June 2006). Moreover, Chairman Law has not selected members of the Ad Hoc by a fair and open process. When the
Ad Hoc was first constituted, Chairman Law named Don Wright, who was not at that time a member of PatCom, as a member of the Ad Hoc, while excluding all other non-PatCom members. There has never been any explanation as to why Don Wright, who is a consultant
to a company supporting the changes, merited such special treatment, and such special treatment is all the more troubling as we understand that Mr. Wright is the primary author of the far-reaching changes in the draft revisions. Indeed, from the outset the Ad Hoc has been unbalanced in that it has been dominated by employees
or consultants of companies that for the past two years have been seeking to change the patent policies of other standards organizations around the world to devalue the essential patents of others. Such dominance would
be impermissible in an IEEE-SA technical body and should not have been artificially created by Chairman Law. Lack of Openness Section 5.2.1.4 of the IEEE-SA Standards Board Bylaws provides that “Openness is defined as the
quality of being not restricted to a particular type or category of participants. All meetings involving standards development shall be open to all interested parties.” Similarly, section 5.3.3 of the IEEE-SA Standards Board Operations Manual states that
“Standards development meetings are to be conducted consistent with the principle of openness.” These principles have been sadly lacking in the work of the Ad Hoc. Instead, the Ad Hoc has shrouded
its work in secrecy. None of the proposed changes to the IEEE-SA patent policy has been openly attributed to any particular member of the Ad Hoc, nor has there been any requirement that the proponent of a change publicly justify it or provide any rationale
or evidence for any supposed problem with the current patent policy that might merit such change. None of the deliberations of the Ad Hoc have been open to non-members, and there has been no public announcement of any vote taken by the Ad Hoc. This secrecy
stands in stark contrast to not only the IEEE’s stated principles, but also the practices of every major standards organization that is considering similar issues. Moreover, this secrecy is particularly troubling in the context of the IEEE where committee
members have fiduciary duties and are required to avoid conflicts of interest (see
http://standards.ieee.org/about/sasb/nmo_ct.pdf). Lack of Consensus The foundation of standards development in the IEEE is a consensus-based approach. The IEEE-SA Bylaws
define consensus as follows: “Consensus is established when, in the judgment of the IEEE-SA Standards Board, substantial agreement has been reached by directly and materially affected interest categories. Substantial agreement means much more than a simple
majority, but not necessarily unanimity. Consensus requires that all views and objections be considered, and that a concerted effort be made toward their resolution.” This principle, too, has been absent from the Ad Hoc. The drafters of the proposed changes to the
IEEE-SA patent policy have not made a “concerted effort” to resolve objections raised by the undersigned companies. Indeed, in certain respects the proposed changes have become more objectionable, not less. Moreover, we understand that since at last the beginning
of 2014 the Ad Hoc has been proceeding by a bare majority vote, and not the “much more than a simple majority” that consensus requires. Lack of Due Process Chairman Law decreed that the sole method by which interested parties may submit comments on the draft
changes to the IEEE-SA patent policy to the Ad Hoc is by using a spreadsheet formula used in technical standards development in the 802.3 Working Group. See, e.g.,
http://grouper.ieee.org/groups/pp-dialog/email/msg00242.html.
Redlines or other markups of the proposed document were expressly prohibited.
See, e.g., http://grouper.ieee.org/groups/pp-dialog/email/msg00249.html.
A limited time for verbal input has been allowed at PatCom meetings, but Chairman Law has announced each time that for comments to be considered they must be submitted using the tool. It is strange that part of the process used by 802.3 was adopted, yet the core aspects of comment
resolution which ensure fair treatment for all were not adopted. In any IEEE group, draft standards must be adopted by consensus. Commenters whose objections are ignored or brushed aside have the option to maintain their objections, which, even if the chair
declares consensus, must be forwarded to the next level in the standards approval process. Here, PatCom is not working by consensus even in the Ad Hoc, and it is not even trying to determine whether there is a consensus amongst all interested parties. Thus,
there is no due process check against arbitrary treatment of comments as commenters have no recourse if their comments have been rejected by the Ad Hoc, or if they believe they have been treated unfairly. This lack of due process has resulted in a stark difference between how the Ad Hoc treats comments
submitted by companies that for the past two years have been seeking to change the patent policies of other standards organizations around the world to devalue standards essential patents and comments submitted by others. For example, in the first set of comment
dispositions, the Ad Hoc accepted 100% of Intel’s comments (see comments 207-212) and 66% of Apple’s comments (see comments 149-157), but only 25% of IBM’s comments (see comments 234-253) and 19% of GTW Associates’ comments (see comments 284-299). The Ad Hoc
has rejected comments by Qualcomm and Ericsson at even greater rates.
* * * The undersigned companies have repeatedly urged PatCom and Chairman Law to open the Ad Hoc to all
interested participants and to adopt a consensus-based approach but have been repeatedly rebuffed. By this email, we ask the SASB to intervene. Specifically, we request that the SASB direct PatCom to (1) open up the Ad Hoc to all interested participants, and
reflect the principle of balance; (2) require that the Ad Hoc conduct itself consistent with the principle of openness; (3) require that the Ad Hoc make decisions by consensus, with particular attention to making a “concerted effort” to resolve all objections;
and (4) require that the Ad Hoc adopt procedures that will ensure due process. Respectfully submitted, Qualcomm Incorporated Nokia Solutions and Networks Oy Nokia Oy Blackberry Ltd |