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Dear Scott and all, I am writing with respect to Scott’s proposals below. Ericsson has no problem with Scott’s proposed FAQ 84A. However, Ericsson disagrees with both the concept and language introduced in Scott’s newly prosed FAQ 13B. I.
With Respect to the proposed Concept Adopting a policy that broadly allows for approving specifications for which there are negative, missing or rumored negative LOAs would be a dangerous deviation from recognized
best practices of standards development and competition policies. The standards policy best practices are also embedded in the ANSI IPR Policy (§3.1.1) and Guidelines (pp. 3-4) both of which highlight the importance of the American Standard
Developer receiving F/RAND assurances. See excerpt of that language below at the end of my email. From a competition perspective, RAND assurances are crucial to ensure future access to the standard and assure that no future implementer is excluded from implementing
the standard. Their absence opens the door for exclusion of future users of the collaboratively developed standard. Hence, a policy that recommends knowingly approving a specification for which there is a negative, rumored-negative or missing LOA, let alone
multiple ones, would facilitate future anticompetitive exclusion of IEEE standards implementers. If a negative LoA has been submitted, rumored to have been submitted but not posted, or is knowingly missing, let alone when multiple LOAs answer that description, that
means that future implementers of the standard face a problem of assuring access to it. And over the past 15 months we have witnessed a reality of multiple negative, missing, and rumored-negative LOAs that were not posted. Ericsson itself has submitted a negative
LOA of the latter type in October 2015. This grave situation cannot be remedied by doing an “analysis” on these negative, missing and rumored-negative LoA.
In light of the above, and as an organization that has
declared that its “entire patent policy is itself intended to protect implementers” and that has revised its patent policy last year to make prohibitive orders effectively unavailable to those who choose to provide positive assurances under its new policy,
surely the IEEE would not want to adopt a contradictory and radically new position that fosters potential exclusion of implementers of its standards. II. With respect to the proposed language of FAQ 13B Furthermore, even if the concept proposed in FAQ 13B was acceptable from a standard policy or antitrust perspective or was consistent with IEEE-SA’s statement and policy
(and it is not), note that the specific proposed criteria in the text of 13B are flawed and impractical, because: · It is impossible to consider the existence of licensing programs for a technology/standard which
is not yet implemented in products sold on the market, such as IEEE 802.11ah or IEEE 802.11ax.
· SDOs, as their name suggests, should focus on standards development and should not engage in commercial
judgments, like discussing the existing licensing programs for a particular technology.
· How can the IEEE-SA judge the “general stance” of a “relevant patent holder”? · Judging the importance of a technology covered by patents in a negative LOA is only possible if
patent numbers are included, which is often not the case under the IEEE patent policy where most of the declarations are blanket declarations . Furthermore, in the case of a missing or rumored-negative-but-nowhere-to-be-found-on-the-IEEE-database LOAs, as
is increasingly the case, such an analysis is impossible to conduct altogether. For these reasons, we believe the IEEE should refrain from adopting the new concept or language of proposed FAQ 13B.
Best regards, Dina Kallay *********EXCERPET FROM THE ANSI IP GUIDELINES – TEXT IN SQUARE BRACKETS ADDED OR MODIFIED
***** “[W]here a proposed ANS or an approved ANS may require the use of such patent claim, the procedures detailed in Sections 3.1 [of the ANSI Patent
Policy] must be followed. In particular,
the identified party or patent holder must supply the ANSI-accredited standards developer (“ASD”) with either:
(a)
an assurance in the form of a general disclaimer to the effect that such party does not hold and does not anticipate holding any essential
patent claim(s); or
(b)
an assurance that a license to such essential patent claim(s) will be made available to applicants desiring to utilize the license for
the purpose of implementing the standard, either: (1) under reasonable terms and conditions that are demonstrably free of any unfair discrimination; or
(2) without compensation and under reasonable terms and conditions that are demonstrably free of any unfair discrimination.
ANSI Essential Requirements, Section 3.1.1.
The Patent Holder’s statement of intent to comply shall be retained in the files of both the ASD and ANSI. ANSI Essential Requirements, Section
3.1.2.” From: Gilfillan, Scott L [mailto:scott.l.gilfillan@xxxxxxxxx]
All, From conversations I’ve had with several folks that regularly work on standards-setting at the IEEE, as well as other of my colleagues, there seems to continue to be ambiguity about application of the March 2015 patent policy to pre-existing
standards development. I have also heard questions about the impact of so-called “negative” LOAs – submitted LOAs which select the “no license” option – and requested-but-unsubmitted LOAs on IEEE standardization efforts, e.g. Will the IEEE approve a standard
if a patent holder files a negative LOA? I’d like to offer the following 2 new FAQs for consideration to address these 2 points of confusion. I welcome your thoughts. Thanks, Scott Proposed new FAQs: 84A. With respect to projects that were started before 15 March 2015, but have not yet been approved, will there be a transition period for
applying the updated IEEE-SA Patent Policy? Answer: Yes. For an LOA that references a specific amendment of a standard (e.g. 802.3nnn) which was initiated prior to March 15, 2015, but
for which the patent holder is submitting the LOA after March 15, 2015, if the Submitter selects option 1(d), the Submitter may attach a statement of commitment to license in compliance with the IEEE-SA Patent Policy that came into effect on May 1, 2007. A
form LOA with the associated statement of commitment is provided here [link].
13B: Will the Standards Board reject a draft specification if “negative” LOAs are submitted? Answer: Not necessarily. The existence of a negative LOA will not necessarily result in rejection of a draft standard. The Standards Board may, but is
not required to, consider a number of factors in its evaluation, including for example:
(a) has the patent holder provided LOAs for other IEEE standards, or other amendments to the same IEEE standard;
(b) the amount and state of patent litigation for the relevant technology;
(c) the general stance of the relevant patent holders in relation to (a) and (b);
(d) upon advice and consultation from the WG chair and/or Sponsor, the relative “importance” of the technology related to the non- or negative-LOA patents
to the overall draft standard; (e) the amount of “life” left in the relevant patents;
(f) if a negative LOA has been filed, at what point of the TG/WG process was it filed; (g) do the patents pertain to a technical contribution made by the Patent Holder (including the Patent Holder’s representative/employee participating in the
TG/WG) ____________________________________________
Sr. Standards Counsel |