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PatCom members and interested participants,
I write for Nokia Technologies, Nokia Networks and Alcatel-Lucent (collectively, “Nokia”) to indicate formal agreement with, and support of, the arguments raised by Panasonic against the concepts set forth in Gil Ohana’s November 11, 2016 submission to the PP-Dialog listserv. In addition, I make these additional points:
1. Letters of Assurance are of course contractual commitments between the patent holder and IEEE that have as third party beneficiaries the users of the standards. What is proposed here, as noted by Panasonic, is retroactive application of terms and conditions by one party to the contractual commitment to the other party. As far as I’m aware, this would not be permitted under the contract laws of any jurisdiction. That one would be “invited” to withdraw the prior LoA and submit a “new” one under the current policy would not matter. The original LoA submission was made by the patent holder under the terms and conditions that governed at the time when the technology was incorporated into a standard under development. If IEEE wishes to change the terms of that deal, then it must either obtain the Submitter’s consent or find alternative technology – the Submitter cannot be penalized for allowing IEEE to use its technology but then having IEEE later change the conditions under which the permission was provided. Indeed, IEEE has in the past made it clear that its new patent policy does not retroactively amend previously accepted LoAs, and Gil acknowledges the need to avoid retroactive amendment. However, in our view, adoption of a new (PAR-based) approach does not simply “add clarity” (as Gil suggests). Rather, it has substantive effect on previously submitted and accepted LoAs, which themselves make no mention of PARs and which were submitted at a time when PARs were not mentioned in the patent policy at all.
2. It is unclear exactly what Gil proposes. Is it a further addition to the proposed language in “Possible Addition to the Patent Slides for Standards Development Meetings of the FAQs” that is to be discussed under Agenda Item 5.2 at Monday’s PatCom meeting? Is it a substantive change elsewhere in the Patent Slides, FAQs, or IPR Policy? Clarification is needed so all can better know the potential ramifications. As such, I would expect that any decisions made by the PatCom on Monday concerning this item 6.1 would be at most a decision to continue discussion at future meetings by which time more information on intentions will have been provided.
Regards,
John Kolakowski