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Hi Dave, Thank you for circulating the agenda. I wanted to propose an expansion of the discussion of Agenda Item 5.2. The current agenda item involves the addition of FAQ text to suggest to Working
Group chairs that they consider asking for a new LoA when an Accepted LoA pre-dates the effective date of the text of the patent policy (currently, March 15, 2015). I agree with the proposal. I am concerned, however, that it does not resolve the uncertainty
that has existed since March 15, 2015 regarding the applicability of the updated policy text to “work in process” – i.e. standards development efforts that were ongoing on March 15, 2015, and even standards development that began after March 15, 2015, but
which arguably are within the scope of LoAs accepted before March 15, 2015. In its resolution approving the “Draft 39” text that became the text of the updated patent policy, the Standards Association Standards Board of Governors (resolution dated December 2014,
available here:
https://standards.ieee.org/about/bog/resolutions.html) provided for the March 15, 2015 effective date for the updated policy tex. However, IEEE-SA but did not expressly address the question of the application of the updated policy text to “work in process”.
As Chuck Adams noted at the June 2016 PatCom meeting questions have arisen regarding the application of the updated policy text to “work in process”. One troubling issue raised by the potential application of different patent policy texts to the same standards
development effort is that different participants will be participating under different versions of the patent policy text.
The proposal under Agenda Item 5.2 helpfully calls the attention of Working Group participants to the possibility that the submitter of a pre-update LoA may be relying on an LoA submitted
before the effective date of the updated patent policy text. However, IMHO more is needed to provide clarity and create a “level playing field” for participants in IEEE-SA standards development. Specifically, PatCom needs to draw a bright line identifying
what standards development activities are covered by the updated text. One approach would be to look at the date on which the PAR governing the creation of a standard, amendment, or revision for which a patent may be essential. The declaration and licensing
of patents essential to standards developed based on PARs approved on or after March 15, 2015 would be governed by the updated policy text. This would be true even if the patentee that submitted an LoA accepted before March 15, 2015 claims that the patent
is within the scope of that LoA. The PAR-based rule both avoids retroactive application of the patent policy and provides certainty to participants regarding which patent policy text governs which IEEE-SA standards development
effort. To anticipate questions regarding the interplay between the PAR-based approach to the coverage of the updated policy text and Operations Manual 6.3.4, it should be clear that a patentee that
has submitted a previously accepted LoA that covers patents essential to a standard created under a PAR approved after the effective date of a by-law change may, within a reasonable time after the approval of a new PAR, choose to withdraw that previously accepted
LoA and substitute a new accepted LoA without being subject to a continuing commitment to license under the previous LoA under the current Operations Manual 6.3.4. I look forward to discussing this proposal at the December meeting. Best regards, Gil Ohana From: Dave Ringle [mailto:d.ringle@xxxxxxxx]
The draft 05 December 2016 PatCom agenda is located at http://standards.ieee.org/about/sasb/patcom/agenda.pdf ****************************************************************** |