As reflected, repeatedly, in multiple comments submitted to PatCom, Ericsson is similarly troubled by the process through which the PatCom group formed the closed ad-hoc
Committee that meets in closed doors to consider far-reaching changes to the IEEE-SA Bylaws’ patent chapter.
Furthermore, we believe that, if adopted as such, the proposed new language may compromise future IEEE-SA standards.
Sincerely,
Dina
DINA KALLAY, SJD
Director, Intellectual Property & Competition
ERICSSON, INC.
1776 Eye Street, NW, Suite 240
Washington, DC 20006, USA
Tel +1-202-824-0115
Mobile +1-202-758-7601
Dina.Kallay@xxxxxxxxxxxx
www.ericsson.com
This communication is confidential. Communication from and to Ericsson is sent and received under the
terms set out at
www.ericsson.com/email_disclaimer
From: Gonell, Fabian [mailto:fgonell@xxxxxxxxxxxx]
Sent: Friday, June 06, 2014 4:18 AM
To: PP-DIALOG@xxxxxxxxxxxxxxxxx
Subject: [PP-DIALOG] Email from Qualcomm, Nokia, NSN and Blackberry to the Members of the SASB
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
Sent: Thursday, June 05, 2014 9:15 AM
To: 'john.kulick@xxxxxxxxxxx'; 'jrosdahl@xxxxxxxx'; 'constantin@xxxxxxxx'; 'peter.balma@xxxxxxxx'; 'clint.chaplin@xxxxxxxxx'; 'stephendukes@xxxxxxxx'; 'jean-philippe.faure@xxxxxxxxxxxx'; 'jskatz@xxxxxxxxxx'; 'dlaw@xxxxxx'; 'hling@xxxxxxxxxx'; 'oleg.logvinov@xxxxxx';
'ted.olsen@xxxxxxxxxxx'; 'glenn.parsons@xxxxxxxxxxxx'; 'r.c.petersen@xxxxxxxx'; 'Adrian.P.Stephens@xxxxxxxxx'; 'peter.sutherland@xxxxxxxx'; 'Yatin.Trivedi1@xxxxxxxxxxxx'; 'f.wright@xxxxxxxx'; 'y.yuan@xxxxxxxx'; 'Dick.DeBlasio@xxxxxxxx'; 'janezic@xxxxxxxxxxxxxxxx';
'r.h.hulett@xxxxxxxx'; 'farooq.bari@xxxxxxx'; 'tburse@xxxxxxxx'; 'grhoffman@xxxxxxxxxxxxxxxx'; 'michael.janezic@xxxxxxxx'; 'pbwinsto@xxxxxxxxxxxxxx'; 'joseph_I_koepfinderl@xxxxxxx'; 'don@xxxxxxxxxxxxxxxxxxxxxxxx'
Cc: kerry.miller@xxxxxxx;
Jari.Vaario@xxxxxxxxx; 'Michael Froehlich'
Subject: Letter to IEEE SASM Members Regarding PatCom Activity
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