[PP-DIALOG] The 4 Questions on LOAs PLUS
There have been a number of exchanges on
Letters of Assurance [LOAs]. My thoughts follow (which may or may
not be my company's formal views).
- For Q1-Q3, the LOA should not
be summarily dismissed because or whenever the IEEE changes its policy.
I do not think it beneficial to the parties to dissolve an existing,
legal LOA (accepted by the IEEE) and require a replacement new LOA when
IEEE Policy (section 6 or elsewhere) is revised. Approaches offered by
Elizabeth, along with comments from John and Georg, warrant serious consideration.
For Q4, as noted previously, the LOA format and obligation should
reflect terms and conditions under which the assurance was made, especially
when new uses (outside the assurance or license scope) arise after an LOA
submitter discontinued participation. Generally, I have concerns with some
proposals that would change rules and obligations ex post (after obligations
are in place).
- I appreciate Scott's compromise
on allowing for LOAs (that are submitted after a Policy change) to be governed
by prior Policy provisions in effect when the standard was in development.
That is, if there was a standard in development before the 2015 Policy
change, an LOA (submitted after the 2015 revision) can nonetheless track
the 2007 Policy. As in point 1, this proposal considers party expectations
-- in this case, an expectation that the 2007 policy provisions would apply
to the standard. This proposal deserves consideration. A quick question:
if the standard effort began in 2006, could a pre-2007 policy govern
the LOA, or is there no need to generalize the proposal?
- I appreciate Scott's proposal
to let IEEE determine next steps when there is a "negative" disclosure,
or refusal to assure a RAND license. While Dina is correct that proceeding
with the standards process may be problematic, I think it legitimate for
IEEE to consider this situation. While a standard would not
be ANSI accredited with a known SEP for which there is no assurance, ANSI
Guidelines (page 8) do provide latitude to SEPs in this circumstance. [SDO
can generate a standard that is non-ANS, SDO can look for substitute technology,
SDO can determine the patent is not a SEP, etc.] I do not know if I agree
with Scott's factors, but allowing an SDO to proceed with the standard
as a non-ANS is not excluded from IEEE consideration. Topic may be
considered by IEEE. In this regard, if an SDO (or IEEE) proceeds, I
would propose that the SDO provide notice that there was an identified
SEP without an LOA.
Given the important topics being
discussed, it is unfortunate that there is no dial-in opportunity. As meetings
occur in more diverse global locations, this lack of openness is a growing
problem.
Marc Sandy Block,
Counsel, Intellectual Property Law
1B117 / North Castle Drive / Armonk, NY 10504
msb@xxxxxxxxxx
TL 251-4295 (outside 914-765-4295); fax 251-4290