Dear Dave Ringle.
My questions are submitted in three parts.
Part I
Since we have not heard anything to the contrary, I would guess that Elisabeth’s question (i) would be answered in the negative. Since the original proposal was reported out
as “PatCom further discussed the proposal from agenda item 6.1 of the June PatCom meeting and took no action on the proposal.”
I think it means that it’s still active, since it was not dismissed, right?
I would like to refresh this thread with perhaps the most significant part of that proposal, with the last two paragraphs:
Solely in regards to projects/standards that were initiated prior to 15 March 2015, would it be acceptable to permit a Submitter to include ONLY the following exact text as an attachment to a newly
submitted LOA in which box D.1.d is selected?
Notwithstanding its having checked box D.1.d, the Submitter declares that as to the IEEE Standard or IEEE standards project identified in part C and for the Essential Patent Claims covered by part
E Scope of Assurance of this LOA, the Submitter’s licensing position is the same as it would have been if the Submitter had submitted an LOA with box D.1.b selected using the version of the IEEE LOA form that was in use immediately prior to the 15 March
2015 implementation of the updates to the IEEE-SA patent policy, under the terms of the
IEEE-SA Standards Board Bylaws that were in effect at that time.
While there were many thoughts, some shared, and perhaps some not, about how that proposal would be implemented, the quoted statement by the PatCom doesn’t tell us much about
how or whether the 6.1 proposal is part of what is being considered in the current proposal. I agree that it would be helpful if you could explain some of the reasoning about what PatCom is doing so that our comments on this reflector can be more useful to
all.
For example, is PatCom walking away from its interest in reducing negative LOAs by allowing for reference to the pre-2015 policy for projects/standards initiated prior to 15
March 2015, an interest that may have sparked the 6.1 proposal? If so, is the latest proposal simply a different attempt to reduce negative LOAs by making it harder to file them? Would PatCom be saying that it is interested in a proposal that includes a method
to combine the two proposals, or not? Was there recognition that the changed policy in 2015 caused one class of participants more concern than others, and rather than an attempt to resolve potentially unhelpful numbers of negative LOAs the 6.1 proposal was
an attempt to reduce the concerns of that class of participants regarding the effects of the policy change?
-----------------------
Part 2
Separate and apart from understanding the overall interest of PatCom in making these proposals, so that the PP Dialog reflector participants can add some value of interest
to PatCom, there is the specific question highlighted by Cindy and Elisabeth that should also be addressed. While the definition of an Accepted LOA includes both positive and negative LOAs, it would be useful to clear up any potential confusion that the policy
limitations under the post 2015 policy regarding Prohibitive Orders (or any other limitations on licensing terms in the newer policy for that matter), would apply to licensing patents subject to negative LOAs. They clearly would not. I think that the FAQ proposed
as 28A is the right place to reflect such a clarification.
-----------------------
Part 3
Additionally, there is no qualification on the discretion exercisable by the IEEE-SA in determining whether a form is Accepted.
“Accepted Letter of Assurance” and “Accepted LOA”shall mean a Letter of Assurance that the IEEE-SA
has determined is complete in all material respects and has been posted to the IEEE-SA web site.
What if the purple paragraph above (from the 61. Proposal), or a specific ex ante offer is provided along with the form? Will that be deemed incomplete? If you look at the
existing form,
https://development.standards.ieee.org/myproject/Public/mytools/mob/loa.pdf , box 1b, second choice down requires an attachment. Since the rules contemplated don’t seem to allow for attachments, would attaching license terms be acceptable? Would the IEEE-SA
be responsible for determining whether those terms were within or outside of the requirements of the IPR policy? If so, does that make sense?
It seems to me we would benefit from knowing more about what qualifies as compete and acceptable. Perhaps a proposed form which matches the proposal would help this discussion.
-----------------------
Part 4
I have an additional question.
In the proposed modification to the OpsMan 6.3.4 the first paragraph of the new proposal is confusing and cuts out part of a sentence, leaving it hanging:
6.3.4
Multiple Letters of Assurance and Blanket Letters of
Assurance
A Submitter may provide the IEEE with a Blanket Letter of Assurance only when the LOA indicates licensing assurance
for a specific [Proposed] IEEE Standard that covers all Essential Patent Claims the Submitter may currently or in the future have the ability to license. A Submitter may submit separate Letters of Assurance
providing different licensing positions for different potential Essential Patent Claims.
Is the bracket “[Proposed]” meant to be there? And why is the set of words after Essential crossed through? It leaves us with an incomplete sentence.
Best regards,
Michael.
From: Elisabeth Opie <office@xxxxxxxxxxxxxxxxx>
Reply-To: Elisabeth Opie <office@xxxxxxxxxxxxxxxxx>
Date: Tuesday, November 6, 2018 at 12:04 PM
To: "PP-DIALOG@xxxxxxxxxxxxxxxxx" <PP-DIALOG@xxxxxxxxxxxxxxxxx>
Subject: Re: [PP-DIALOG] Notice of PatCom D.1.d LOA proposal for consideration in December 2018
Dear Dave,
Following on from Cindy’s query, I have a few questions for clarification regarding agenda item 6.1 of the 3 December PatCom meeting (D.1.d LOA Proposal – Wennblom)
[https://standards.ieee.org/content/dam/ieee-standards/standards/web/governance/patcom/agenda.pdf].
i. The item above is the one dated 12 October [http://grouper.ieee.org/groups/pp-dialog/email/msg00493.html].
Does that mean that the agenda item 6.1 (https://standards.ieee.org/content/dam/ieee-standards/standards/web/governance/patcom/618patmins.pdf) discussed
during the PatCom Meeting of June 12 and at the PatCom executive session (oct 1-2) has been discussed and dismissed by the Board?
ii. Could you please give a bit more background on the rationale behind the new proposal? This will assist in giving substantive consideration to the proposal.
iii. From your answer to Gaelle Martin Cocher´s query, the proposed amendment to section 6.3.4 of the IEEE-SA Standards Board Operations Manual is described
as a purely editorial clean-up of redundant text. However, I note that also the new proposed FAQ 28 A is redundant, since it includes some text which is already in the IEEE bylaws, section 2. Could you please explain the rationale for introducing this new
FAQ?
iv. The bylaws and now the new proposed FAQ 28 A (b) reads as follows: “An Accepted LOA that contains such a statement signifies
that reasonable terms and conditions, including without compensation or under Reasonable Rates, are sufficient compensation for a license to use those Essential Patent Claims and precludes seeking, or seeking to enforce, a Prohibitive Order except as provided
in this policy”. We take this reference to a subset of Accepted LoAs as being exclusive of negative LoAs. Negative LOAs submitted to, and accepted by, IEEE do not contain such a statement. Could you please confirm our understanding.
Thank you for your assistance.
Kind regards / Mit freundlichen Grüßen,
Elisabeth Opie
BA LLB(Hons) LLM GAICD
International Technology Lawyer
+49 89 2155 8098 (office)
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+49 178 1855 227 (mobile)
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http://www.elisabethopie.com
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From: "Bianlixin (Cindy)" <bianlixin@xxxxxxxxxx>
Reply-To: "Bianlixin (Cindy)" <bianlixin@xxxxxxxxxx>
Date: Thursday, 1 November 2018 at 02:45
To: "PP-DIALOG@xxxxxxxxxxxxxxxxx" <PP-DIALOG@xxxxxxxxxxxxxxxxx>
Subject: Re: [PP-DIALOG] Notice of PatCom D.1.d LOA proposal for consideration in December 2018
Thanks Dave for your reply to my question.
Per definition of 'Accepted LOA' in Clause 6.1 of the IEEE-SASB Bylaws, "Accepted Letter of Assurance" and "Accepted LOA" shall mean a Letter of Assurance that
the IEEE-SA has determined is complete in all material respects and has been posted to the IEEE-SA web site.
Since all negative LOA’s has been posted to the IEEE-SA web site which is administrated by SA, this is prima facie known publicly that they are “accepted LOA”.
No matter they are negative blanket LOA or negative LOA that has specified patent numbers.
I raised up the question of “accepted LOA” because a negative LOA though checked the D1d box (“not willing to license”) would be included as “exclusion of injunctive
relief” by the new proposed FAQ 28A into the bucket of “accepted LOA” as such.
An Accepted LOA that
contains such a statement signifies that reasonable terms and conditions, including without compensation or under Reasonable Rates, are sufficient compensation for a license to use those Essential Patent Claims and precludes seeking, or seeking to enforce,
a Prohibitive Order except as provided in this policy.
Making declaration of assurance is with the purpose that both patent holders and implementers can understand clearly what the declaration is thus can make reasonable
relevant business decision.
I hope to see such purpose can be achieved with so many efforts.
Best regards,
Cindy
From: Dave Ringle [mailto:d.ringle@xxxxxxxx]
Sent: 2018年10月31日
10:00
To: PP-DIALOG@xxxxxxxxxxxxxxxxx
Subject: Re: [PP-DIALOG] Notice of PatCom D.1.d LOA proposal for consideration in December 2018
Dear Cindy,
Please see the definition of 'Accepted LOA' in Clause 6.1 of the
IEEE-SA Standards Board Bylaws at https://standards.ieee.org/about/policies/bylaws/sect6-7.html
Regards,
Dave
On Tue, Oct 30, 2018 at 9:42 PM, Bianlixin (Cindy) <bianlixin@xxxxxxxxxx> wrote:
Hello all,
A question here regarding “an accepted LOA”, reading the D1d Proposal, new FAQ 28A.b), also highlighted below.
What is considered as “an accepted LOA”? Does that cover all LOA’s that have been listed or published in IEEE website including Negative blanket LOAs?
Refer to D1d proposal, New FAQ (maybe 28A)
What type of licensing assurance does IEEE request?
b) A statement that the Submitter will make available a license for Essential Patent Claims to an unrestricted number of Applicants on a worldwide basis without compensation or under Reasonable Rates, with other reasonable terms and conditions that are demonstrably free of any unfair discrimination to make, have made, use, sell, offer to sell, or import any Compliant Implementation that practices the Essential Patent Claims for use in conforming with the IEEE Standard. An Accepted LOA that contains such a statement signifies that reasonable terms and conditions, including without compensation or under Reasonable Rates, are sufficient compensation for a license to use those Essential Patent Claims and precludes seeking, or seeking to enforce, a Prohibitive Order except as provided in this policy.
Best Regards
Cindy/Bian Lixin/卞丽鑫
Senior IP Counsel
Work: +86-755-287 86092
Mobile:+86-186-6629-1226
Email: bianlixin@xxxxxxxxxx
From: Dave Ringle [mailto:d.ringle@xxxxxxxx]
Sent: 2018年10月13日 1:45
To: PP-DIALOG@xxxxxxxxxxxxxxxxx
Subject: [PP-DIALOG] Notice of PatCom D.1.d LOA proposal for consideration in December 2018
Dear PP-Dialog participants,
The current LOA Form is located at https://development.standards.ieee.org/myproject/Public/mytools/mob/loa.pdf
The current FAQs are located at https://standards.ieee.org/content/dam/ieee-standards/standards/web/documents/other/patents.pdf
The current SASB OpMan is located at https://standards.ieee.org/about/policies/opman/index.html
Please see the attached proposal that will be included for discussion/action at the 03 December 2018 PatCom meeting.
As always, please feel free to share your thoughts on PP-dialog@xxxxxxxx
Regards,
Dave
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David L. Ringle
Director, IEEE-SA Governance
IEEE Standards Association
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TEL: +1 732 562 3806
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EMAIL: d.ringle@xxxxxxxx
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