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Dear Colleagues, I just sent the email below to the members of the SASB. Best regards, --Fabian From: Gonell, Fabian
Dear SASB Members, I write to you to respond to Gil Ohana’s email, nominally to me, of Monday, June 9, at 12:27am Eastern
Time (the “Second Response”) which followed his email of Thursday. June 5 (the “Response”) to you regarding the email I transmitted to you on behalf of Qualcomm Incorporated, Nokia Solutions and Networks Oy, Nokia Oy, and Blackberry Ltd. (collectively, the
“Four Companies” and the email, the “Four Company Letter”). Once again, this email is over my own signature, in my capacity as an employee of Qualcomm, and not on behalf of the Four Companies. At the outset, we would like to draw your attention to recent emails sent over the PatCom email reflector
by Ericsson (http://grouper.ieee.org/groups/pp-dialog/email/msg00283.html) and IBM (http://grouper.ieee.org/groups/pp-dialog/email/msg00286.html).
There are now six major companies that have expressed varying concerns with the Ad Hoc’s processes, and other companies share these concerns. We therefore have not responded and are not going to respond in correspondence to you to Mr. Ohana’s disparagement
of our company. This is not about Qualcomm. It is about the IEEE, it is about PatCom and the Ad Hoc, it is about your role as members of the SASB, and it is about the principles of “consensus, due process, openness, and balance” that the SASB is tasked with
upholding. Lack of Balance The Second Response concedes that the drafting of changes to the IEEE patent policy is being done
by the Ad Hoc. And it does not dispute that:
·
The Ad Hoc group is restricted to persons selected by Chairman Law.
·
Previous ad hocs to PatCom were open to all interested parties (see, e.g.,
http://grouper.ieee.org/groups/pp-dialog/email/msg00229.html).
·
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).
·
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.
·
From the outset the Ad Hoc 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. With these facts undisputed, the Second Response belittles the legitimate concerns raised by the Four
Companies (and others) by calling concerns about balance “silly.” The Second Response seems to suggest that the principle of balance should be disregarded because (a) meetings of the group to which the Ad Hoc reports, PatCom, were open; and (b) the Ad Hoc
accepted comments using the spreadsheet tool. Each SASB member should decide for himself whether the principle of balance is “silly.” If you agree
with us that it is not, then it is difficult to understand why it should be disregarded in these circumstances. It would not excuse a working group suffering from improper dominance – particularly one in which participation was artificially limited to ensure
that it was so dominated – that RevCom meetings are open. Nor would it excuse such a group if it accepted written comments from those excluded. Regardless of any events at PatCom meetings, or the solicitation of comments, the fact remains that the proposed
changes were entirely created by the closed, unbalanced, Ad Hoc group. Lack of Openness and Lack of Consensus With respect to the issues of openness and consensus, the Second Response once again does not dispute
the facts set forth in the Four Company Letter. Instead, the Second Response primarily suggests that, as a technical matter, it is not impermissible for the Ad Hoc group to act in a manner contrary to these principles as described in the IEEE-SA Bylaws.
While this suggestion is certainly debatable – particularly given the fiduciary duties that attach to board and committee positions within IEEE – it misses the point. It is not legally impermissible for any member of this board to stand in the middle of a
field holding a lightning rod during a thunderstorm. That doesn’t mean it is a good idea, or even a reasonable act. The requirements of openness and consensus apply to IEEE standards activities for good reasons, which reasons are fully applicable to an issue
as important as major revisions to the IEEE patent policy. The Second Response also argues that the Ad Hoc was not “restricted to a particular type or category
of participants” because, once again, PatCom meetings were open and the Ad Hoc accepted comments. As with the issue of balance, it is no more an answer to the Ad Hoc’s lack of openness that PatCom meetings are open than it would be an answer to a working
group’s lack of openness that RevCom meetings are open. Nor does the acceptance of comments standing alone alleviate the restriction of participants in the Ad Hoc by Chairman Law. Lack of Due Process The Second Response’s arguments on the issue of Due Process are somewhat muddled, but seem to come
down to the suggestion that the absence of recourse for arbitrary or unfair treatment of comments does not constitute a “lack of procedural safeguards.” If that were true, one would wonder why such recourse is required by IEEE’s policies applicable to standards
activities. Alternatively, the Second Response can be read to suggest that the opportunity to bring concerns to
the SASB itself and/or the possibility that SASB members could review hundreds of comment dispositions one-by-one are somehow a substitute for such recourse. They are not. Even if they were, however, it is not at all clear that persons or entities have such
an opportunity. To the contrary, we are aware that a draft of the proposed changes to the IEEE patent policy was sent
to members of the SASB on May 10, in order to qualify such draft for a vote at the SASB meeting on June 12. There was no public announcement of this transmission, nor is it clear what version of the draft changes was sent to the SASB. Indeed, there does
not seem to be a version that could have been properly sent to the SASB given that the latest public version of the draft changes was the subject of an open comment period which did not end until May 23. It accordingly makes little sense for that version
to have been sent to the SASB unless at least a majority of the members of the Ad Hoc had predetermined that all comments received during the open comment period were going to be rejected. In a response to an email inquiry, Dave Ringle of IEEE stated that the unidentified “submission” to
the SASB will be considered on June 10 by PatCom, which will then decide whether to send it to the SASB. Setting aside the propriety of sending the SASB members draft changes for a vote before such changes have been approved by PatCom, the total effect of
this course of conduct is that as of this writing – the morning of June 10 – interested parties have no idea what the draft changes on which the SASB is supposedly going to vote on June 12 will be. Accordingly, we have not had and will not have any meaningful
opportunity to prepare to present our concerns about the substance of the draft changes to the SASB before the SASB vote. Moreover, given the lack of public announcement of the intended vote, it is not at all clear that the SASB will accept input on the substance
of the draft changes itself, rather than at the PatCom level. This is why the Four Company Letter and my subsequent emails have been focused on the Ad Hoc process, and not the substance of the changes on which you will be asked to vote. If the SASB will indeed accept such input itself, then I ask by this email that Chairman Kulick announce at the PatCom meeting and/or over the PatCom email reflector
that such input will be accepted by the SASB and indicate the format in which such input will be accepted. In addition, I ask that the SASB allow time for such input to be prepared by postponing its vote until its next meeting. If the SASB will not accept
such input itself, then the SASB should grant the Four Companies’ request to 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, Fabian D. Gonell VP, Division Counsel QUALCOMM Incorporated 5775 Morehouse Drive San Diego CA 92121 From: Gil Ohana (gilohana) [mailto:gilohana@xxxxxxxxx]
Dear Mr. Gonnell, Thank you for your reply. I have noted areas of disagreement
in red within the text of your e-mail. Best regards, Gil From: Gonell, Fabian [mailto:fgonell@xxxxxxxxxxxx]
Dear SASB Members, I write regarding the email I transmitted to you on behalf of Qualcomm Incorporated, Nokia Solutions and Networks Oy, Nokia Oy, and Blackberry Ltd. (collectively, the “Four
Companies” and the email, the “Four Company Letter”) to reply to Gil Ohana’s response (the “Response”). Please note that this email is over my own signature, in my capacity as an employee of Qualcomm, and not on behalf of the Four Companies. The gravamen of the Four Company Letter is that the process followed by PatCom to draft changes to the IEEE patent policy has been wholly inconsistent with the principles
of “consensus, due process, openness, and balance” that the SASB is tasked with upholding. The Four Company Letter discusses each of these principles, and demonstrates by reference to specific facts how the process adopted by PatCom has fallen short. The Response states that each of the facts asserted in the Four Company Letter (which the Response mistakenly calls “Mr. Gonell’s allegations”) “is false.” If that were
true – which it is not – one would expect that the Response would be replete with references to contrary facts. But it is not. Indeed, most of the facts cited in the Four Company Letter stand unrebutted, and the Response’s attempts to rebut the remainder
miss the mark. [Gil Ohana response: I did not respond to your specific comment about Don Wright because I do not know the underlying facts. I’m not a mathematician, but I do believe that the
word “most” is usually used to refer to a majority, and I responded to the majority of Mr. Gonnell’s other allegations. I also responded to what he (accurately) described as the “gravamen” (I think that means something like “focus” or “thrust”), which is
the allegation by Mr. Gonnell and the other companies (Blackberry and Nokia) that co-signed the initial contribution regarding the unfounded belief that there have been procedural improprieties in the process the Patent Committee has undertaken to identify
suggested revisions to the IEEE Patent Policy.] Composition of the PatCom Ad Hoc and Lack of Balance The Response attempts to elide the issue of the closed nature of the PatCom Ad Hoc and its lack of balance by claiming that PatCom itself “has prepared proposed text.” That
is incorrect. As the PatCom minutes reflect, work on the IEEE patent policy has been carried out by an Ad Hoc led by Phil Wennblom, and not by PatCom itself. See, e.g.,
http://standards.ieee.org/about/sasb/patcom/0314patmins.pdf. The Response does not dispute the following facts about the composition of the Ad Hoc and its lack of balance:
·
The Ad Hoc group is restricted to persons selected by Chairman Law.
·
Previous ad hocs to PatCom were open to all interested parties (see, e.g.,
http://grouper.ieee.org/groups/pp-dialog/email/msg00229.html).
·
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).
·
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.
·
From the outset the Ad Hoc 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. [Gil Ohana response: The concern Mr. Gonnell expresses about a lack of balance within the Ad Hoc Committee is silly. The Ad Hoc was tasked with identifying a set of proposed
revisions to the Patent Policy. Every step that the Ad Hoc took following its formation was informed by the views of participants in a series of Patent Committee meetings that we both attended (along with many others) and in a series of requests for comments
(in which I believe Mr. Gonnell’s Qualcomm colleague Dan Hermele was the single most active commenter). The output of the process will be subject to a vote of the Patent Committee, and to subsequent votes at the Standards Board and the Board of Governors. Perhaps before Mr. Gonnell criticizes the process that was used, he should identify an alternative process that he believes would have been more effective. An open call for
participants would have resulted in the creation of a large, unwieldy group that would have been unable to decide a path forward in a reasonable amount of time. If members of the Standards Board want to evaluate the merit of that prediction, they may wish
to reflect on the processes at ETSI and ITU-T, which, despite over ten multi-day meetings over the past few years, have been unable to reach consensus on text. Maybe the IEEE Standards Association, cognizant by June of 2013 of the progress (or lack thereof)
in those two processes, and mindful of the views expressed by competition enforcers regarding the risks of patent holdup, self-consciously chose a different path, one that would be less susceptible to the tactics of delay that some companies have used (and
used, and used) at other bodies. Qualcomm, Blackberry, Nokia, and other companies (including Cisco) have had ample opportunities to express their views at the meetings and in the commenting process. Those who (like Qualcomm, Blackberry, and Nokia) disagree
with the changes proposed in the latest draft circulated by the Ad Hoc can also take comfort in the multiple levels of review to which the output of the Ad Hoc will be subjected. To get back to a point I made in my response to Dina Kallay of Ericsson, Mr. Gonnell seems to regard the IEEE Standards Association’s choice of a process that is different from
the processes used at ETSI and ITU-T as in some sense inherently suspect. There may be essential patents, but there are no “essential” processes that a standards development organization must use to evaluate potential changes to its own IPR policy. The IEEE
Standards Association has chosen its own path, including what must have been very time consuming comment-by-comment reviews and responses to voluminous comments submitted by participants and several open meetings of the Patent Committee, at each of which Qualcomm
actively participated (as did Cisco).] Lack of Openness The Response seems to suggest that sending proposed changes to a public reflector and soliciting input by itself satisfies the IEEE’s openness requirements. We disagree.
In the IEEE, “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.” IEEE-SA Standards Board Bylaws section
5.2.1.4. [Gil Ohana response: As I pointed out to Dina Kallay in my response to her contribution, I’m unsure what Mr. Gonnell feels he and Qualcomm were excluded
from. As an initial matter, I will leave it to IEEE counsel to advise as to whether the Bylaws section you quote applies to the development of revisions to the Bylaws themselves.
I am curious whether in the past, participation in meetings to discuss changes to the Bylaws (of which the Patent Policy forms a part) have been conducted in open meetings open to the entire membership of the Standards Association, which is what you apparently
are proposing should be the rule. Now looking at the first sentence of the Bylaws text Mr. Gonnell quotes, given Qualcomm’s extensive participation in the Patent Committee meetings and the commenting process,
I will admit to be struggling to understand how Qualcomm can credibly argue that the revision process was “restricted to a particular type or quality of participants.” Unlike, Qualcomm’s patent licensing program, the discussion at the Patent Committee and
the ability to make comments to the Ad Hoc was open to both chipset vendors (going from memory, Broadcom, Intel, and Qualcomm itself all participated) and device vendors (Apple, Cisco, Ericsson, Hewlett-Packard, Huawei, and Nokia all participated). It was
open both to companies that have significant licensing programs for standards essential patents (Ericsson, Nokia, and Qualcomm, to name some) and those that do not (Apple, Cisco, Broadcom, and Intel).] The Response does not dispute the following facts about the lack of openness in the Ad Hoc:
·
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. [Gil Ohana response: Mr. Gonnell should explain why it important that each change be “openly attributed to any particular member of the Ad Hoc”. The Ad Hoc received numerous
comments, and responded to them. I have no idea how the Ad Hoc’s members decided how to respond to particular comments or who played what role in the discussions. But I know something far more important: the disposition of each comment, including reasons.
I believe that the justification for the Ad Hoc was identified at the initiation of the Ad Hoc as a response to statements from competition enforcers, including Assistant Attorney General Renata Hesse’s
Six Small Proposals speech (for the benefit of members of the Standards Board, I am taking the liberty of attaching that speech to this e-mail).
I suspect that Qualcomm, which has a large and lucrative licensing program, disagrees with many of those proposals. For that matter, Qualcomm may well disagree that there is
such a thing as opportunistic behavior by owners of standards essential patents. Proving to Mr. Gonnell’s satisfaction that there are, indeed, “problem[s] with the current patent policy that might merit” revisions would, therefore, have been difficult.
Fortunately, no single Standards Association member or company has a veto over decisions the Patent Committee makes regarding whether to form an Ad Hoc group. Equally fortunately, the process that this Ad Hoc group followed was entirely transparent to those
of us (you and me both) that were not selected for participation in the Ad Hoc, and the output of the Ad Hoc is subject to multiple levels of review. One is left to wonder whether the underlying problem is that Qualcomm is unhappy with the result of the Ad
Hoc, and are using any argument it can find to try to delay a vote on the work of the Ad Hoc.]
Lack of Consensus The Response does not even mention the word “consensus.” It is indisputable that the changes currently being proposed by PatCom do not enjoy consensus. Moreover, the Response
does not dispute that even within the Ad Hoc the proceedings are by bare majority vote and not by consensus. [Gil Ohana response: I believe that IEEE Standards Association counsel discussed the significance of consensus to the process at one of the Patent Committee meetings, and I will
let IEEE counsel respond on this point if she chooses to do so.] Lack of Due Process The Response does not dispute 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. Nor does the letter dispute that redlines and other markups of the proposed document were expressly prohibited, and that commenters have no procedural recourse (for
example, by maintaining a “no” vote and thereby ensuring that their comments get escalated to the next stage of the process, as is usually the case in standards development) if their concerns are ignored or brushed aside. [Gil Ohana response: I believe that Mr. Gonnell is arguing that Qualcomm was denied due process because it and other participants in the comment process were unable to submit
a markup of the entire policy. If that’s right, Mr. Gonnell may wish to say so. I will point out that commenters (including Qualcomm) were able to propose specific text changes, sometimes numerous text changes. If Mr. Gonnell thinks the IEEE Standards Association
violated his or Qualcomm’s due process rights because they sought comments in a particular format, then he has a unique view of what constitutes due process.] Instead, the Response argues that the SASB should disregard the lack of the procedural safeguards normally present in standards development because it can review for itself
the comment dispositions. Such optional review, however, is not a substitute for a process in which a continuing objection is formally recorded and the objector’s concerns are automatically escalated to the next level. [Gil Ohana response: Perhaps Mr. Gonnell misunderstood what I said. I did not justify the Standards Board overlooking “the lack of the procedural safeguards normally present
in standards development”. I wrote that there was no lack of procedural safeguards. The commenting process was open, and your company used it extensively. Each of the comments submitted received a response, in some cases a very detailed response. Qualcomm’s
objections, like the comments submitted by every other company, are available for every member of the Standards Board to see as he or she decides how to vote if the proposed revisions to the Bylaws are presented to the Standards Board for approval. On behalf
of Qualcomm, Mr. Gonnell has also summarized his objections in a series of communications to the Standards Board (to which I have responded).
It appears that Mr. Gonnell is trying his best to magnify the fact that Qualcomm (like Cisco) was not invited to have a representative in the Ad Hoc in the hope of casting doubt
on the integrity of the process that the Standards Association has followed. That is Qualcomm’s right. For that matter, Mr. Gonnell is also free to rent a billboard on the side of Hoes Lane or hire a skywriter to express Qualcomm’s positions in the heavens
above Piscataway this week. In light of the range of ways companies have to make their objections to the work of the Ad Hoc known, arguing that particular objections will not reach the Standards Board seems unconvincing.]
With respect to the lopsided record of comment rejections cited in the Four Company Letter, the Response argues that disparate treatment of the Four Companies’ comments was
justified because the Four Companies raised procedural objections in addition to substantive objections. While we disagree with that argument, it is non-responsive to the point made in the Four Company Letter. The Four Company Letter compared the acceptance
rate of comments from companies with representatives on the Ad Hoc with the acceptance rates of comments from IBM and GTW Associates. The Response provides no justification for the disparate treatment of those companies’ comments. [Gil Ohana response: I made a different point, which is that the process of seeking to determine bias by looking at relative rejection rates is a fool’s errand. Some companies
chose to submit numerous, in many cases repetitive, comments. Others took a more rifle shot approach. I suspect that the latter approach led to fewer rejections. Is that a concern? In any case, what is special about the process the Ad Hoc chose to use
(compared to the parallel processes at ETSI and ITU-T) is that the entire record of comments and responses is available, as noted earlier, to each member of the Standards Board to see. They can make their decision based on the information before them, including
the multiple rounds of comments submitted to the Ad Hoc and the Ad Hoc’s responses.]
* * * The fundamental disagreement between the Four Company Letter and the Response is over whether the Ad Hoc’s process is one that “is familiar to developers of IEEE standards.”
In that regard, we urge you to consider the following:
·
IEEE standards meeting are open for people to attend. The Ad Hoc meetings are closed private meetings.
·
At IEEE comment resolution meetings the person who submitted the comment is permitted to speak to his comment. In the Ad Hoc the submitter is not permitted to attend
the meeting.
·
At an IEEE comment resolution meeting votes on comment resolutions are recorded in the minutes and those minutes are made public for anyone to read. In the Ad
Hoc, it is unclear if detailed voting minutes are kept since there are no public minutes made available.
·
In IEEE standards development unresolved comments are forwarded to RevCom and the process is scrutinized to ensure that the comment was considered by a broad group
of people voting on the draft. If the Ad Hoc rejects a comment the commenter has no recourse.
[Gil Ohana response:
We respectfully submit that the SASB would be obliged to reject a proposed standard that was developed by a group (a) that is closed and unbalanced; (b) that met in secret;
(c) that did not operate by consensus; and (d) that provided non-members of the group with no procedural recourse to ensure that their concerns were addressed in a fair and impartial manner. So, too, should the SASB reject revisions to the IEEE patent policy
developed in such a manner. We urge the SASB to grant the Four Companies’ request to 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. [Gil Ohana response: Members of the Standards Board may choose to reflect on the motives of Qualcomm and other companies that seek to attack the Ad Hoc. Those companies are
seeking to delay action by the Standards Board. They do so because the proposed revisions under discussion will restore balance to the standards development process, by, among other things: ·
Specifying the limited circumstances when the owner of a patent that is essential to implement an IEEE standard can gain leverage in licensing negotiations by threatening
or seeking to exclude from the marketplace products made by the implementer of an IEEE standard ·
Clarifying that the phrase “to an unrestricted number of applicants” in the IEEE Letter of Assurance form means what it says: a patent owner that commits to license
a patent to an implementer of an IEEE standard cannot “pick and choose” among potential licensees, by, for example, refusing to license at the chipset level in favor of licensing to device vendors only ·
Providing a set of principles as to what licensing terms are compliant with the requirement to grant licenses on “reasonable and nondiscriminatory” terms and conditions,
which will facilitate the resolution of licensing disputes outside of litigation and assist judges called upon to decide those disputes that do wind up in court. The modest set of changes proposed will increase the appeal of the IEEE as a place where innovative new standards should be developed, which is one reason the changes enjoy the
support of innovative companies like Broadcom, Cisco and Intel. But they threaten the licensing businesses of Qualcomm, Nokia, and other companies that have opposed the changes, and who now benefit from the unlimited ability to threaten prospective licensees
with injunctions, from licensing programs under which they discriminate between companies at different levels of the value chain, and from the lack of guidance as to what RAND means.
Those companies could have approached the Standards Board with reasoned arguments as to why the changes the Ad Hoc may choose are unnecessary or unwise. Apparently, they prefer
to create procedural FUD. Members of the Standards Board can reflect for themselves as to what this choice of tactics says about the strength of the arguments that Qualcomm and others would be able to muster regarding the merits of what the Ad Hoc may propose. I would be happy to answer questions from members of the Standards Board regarding this response. Best regards, Gil Ohana]
Respectfully, Fabian D. Gonell VP, Division Counsel QUALCOMM Incorporated 5775 Morehouse Drive San Diego CA 92121 |