I agree with Sandy and Jim.
In addition to the
March 2013 PatCom minutes in which one DOJ speech was an agenda item and alleged impetus for a wholesale revision of the IEEE-SA patent policy, that same speech was mentioned again in the
June 2013 PatCom minutes. In fact the TF that changed the IP policy was named after that speech, that it mischaracterized as “challenges” (see
September 2013 report (the speech says nothing to that effect). I have also attended PatCom meetings where the chair has announced that speech is worthy of “respectful consideration.”
It is clear that PatCom has a tradition of awarding great weight to DOJ speeches, and therefore puzzling that it has recently shifted course, and departed that tradition. Over the past year DOJ Antitrust Division Assistant Attorney General
and Deputy Assistant Attorneys General gave about a dozen speeches that touch on the exact same issues and are highly pertinent to PatCom’s work. None of these speeches are linked to in PatCom minutes, nor were they ever presented as worthy of respectful consideration.
The lack of balance is striking.
More generally, I believe it would serve the interests of the IEEE-SA much better if PatCom were to respectfully consider the views of all its relevant stakeholders and to take a balanced approach.
DINA KALLAY, SJD
Head of Antitrust (IPR, Americas & Asia-Pacific)
ERICSSON
1776 Eye Street, NW, Suite 240
Washington, DC 20006, USA
Tel +1-202-824-0115
Mobile +1-202-758-7601
Dina.Kallay@xxxxxxxxxxxx
www.ericsson.com
This communication is confidential. Communication from and to Ericsson is sent and received under the
terms set out at
www.ericsson.com/email_disclaimer
From: Sandy Block <msb@xxxxxxxxxx>
Sent: Friday, November 30, 2018 11:49 AM
To: PP-DIALOG@xxxxxxxxxxxxxxxxx
Subject: [PP-DIALOG] PatCom Minutes
Importance: High
The reference in the PatCom minutes about the Delrahim statements is of little value. There is no cite to link to the statement(s) or the response letters. Absent comments on
the content, the mere mention (without hotspotting or citing) is of negligible value, especially for people who were unable to attend the meeting. In this regard, is the "multi-association" letter noted in the minutes referring to the February letter from
Judge Ginsburg, Judge Michel, former USPTO Director Kappos et al in support of the Delrahim position or some other letter? With regard to relevance, as noted by Jim Harlan, when FTC Chair Hesse offered her "6 proposals over breakfast," IEEE (and other organizations)
responded with a policy revision effort. Whether or not there is agreement with AAG Delrahim, his official views are significant and IEEE PatCom should consider them to make sure policy does not traverse agency direction (as PatCom considered the Hesse comments).
And, yes, [repeated] AAG positions are more important than comments offered by others pro or con, except in the context of a wider discussion on possible PatCom action. Along this line, views of recent FTC appointee Joseph Simons should also be considered
https://www.ftc.gov/about-ftc/biographies/joseph-j-simons/speeches-articles-testimonies
The idea of sluffing off the AAG's position paper (or FTC head's positions) is off-target.
Marc Sandy Block,
Counsel, Intellectual Property Law
1B05 / North Castle Drive / Armonk, NY 10504
msb@xxxxxxxxxx
Phone 914-765-4295); fax 914-765-4524
From: "Harlan, Jim" <Jim.Harlan@xxxxxxxxxxxxxxxx>
To: PP-DIALOG@xxxxxxxxxxxxxxxxx
Date: 11/29/2018 08:26 PM
Subject: Re: [PP-DIALOG] PatCom: Report Out from the 27 November 2018 Executive Session meeting
Michael,
I appreciate your concern. When then DAAG, Renata Hesse presented “Six Small proposals for SSO’s Before Lunch” in October 2012, the following PatCom meeting of March 2013 had an agenda item of:
“6.1 Challenges Set by the DoJ – Wennblom
Phil Wennblom noted that the DoJ had set out “Six „small‟ proposals for SSOs Before Lunch” during the ITU-T Patent Roundtable in October 2012 as a challenge to SDOs to consider actions they could take to help promote
competition among implementers of a standard. …”
Source:
https://standards.ieee.org/content/dam/ieee-standards/standards/web/governance/patcom/0313mins.pdf
It appeared that AAG Delrahim had a similar call to action by SDO’s and I was surprised PatCom did not address the issue by setting up an ad hoc like it did in 2013. Instead PatCom opted to offer a summary of not
only the DoJ speeches but also opposing views.
Source:
https://standards.ieee.org/content/dam/ieee-standards/standards/web/governance/patcom/618patmins.pdf
With kindest regards, Jim
From:Michael Atlass [mailto:matlass@xxxxxxxxxxxx]
Sent: Thursday, November 29, 2018 5:36 PM
To: PP-DIALOG@xxxxxxxxxxxxxxxxx
Subject: Re: [PP-DIALOG] PatCom: Report Out from the 27 November 2018 Executive Session meeting
Sorry, David (D). I had intended to respond to David Ringle and was not directing the email specifically to you.
Nevertheless, am happy to provide some content regarding your response.
I want to see that the minutes captured authorship without implying personal opinion when an agency position was presented. If you were at the meeting, the way outside counsel presented it, the personal opinion implication
was objected to and I am concerned that it should not be carried forward in the minutes without at least my concern for the misconstruction risk being highlighted by my email to the PP-DIALOG recipients.
Would be willing to discuss further at the meeting if PatCom has interest in continuing this discussion, or on the side, if you would like to have a personal discussion.
From:
Dave Djavaherian <dave@xxxxxxxxxxxxxx>
Reply-To: Dave Djavaherian <dave@xxxxxxxxxxxxxx>
Date: Thursday, November 29, 2018 at 1:54 PM
To: "PP-DIALOG@xxxxxxxxxxxxxxxxx" <PP-DIALOG@xxxxxxxxxxxxxxxxx>
Subject: Re: [PP-DIALOG] PatCom: Report Out from the 27 November 2018 Executive Session meeting
Thanks for your comments Michael.
Responding to your point 3 – I do not think it makes sense for PatCom to seek to log every statement of every government official in its minutes. If that was the approach, then surely participants would be obligated
to submit information regarding the current views of other Federal agencies, such as the the FTC, as embodied in their recent attested court filings, or the rulings of courts, or other materials. Policy advocacy, whether by an individual or by a particular
government agency, may or may not reflect applicable law, as embodied in statute and case materials in any event.
From:
Michael Atlass <matlass@xxxxxxxxxxxx>
Reply-To: Michael Atlass <matlass@xxxxxxxxxxxx>
Date: Thursday, November 29, 2018 at 1:10 PM
To: "PP-DIALOG@xxxxxxxxxxxxxxxxx" <PP-DIALOG@xxxxxxxxxxxxxxxxx>
Subject: Re: [PP-DIALOG] PatCom: Report Out from the 27 November 2018 Executive Session meeting
Dear David,
Thanks for sending this agenda and minutes of the June meeting. It does give me some questions to address on the reflector, so thank you for this opportunity.
1. Regarding the item in the December meeting agenda 6.1:
a. It may be valuable to know how the issues raised in 6.1 of the June meeting (reported as no action) taken in the are related to the agenda
item 6.1 in the December PatCom meeting agenda.
b. For example, were both initiatives intended to resolve a similar issue such as limiting the potential for negative LOAs? It seems to me
more likely that approach of 6.1 in the agenda rather than the earlier offer to declare under the old policy approach broached in the June meeting is actually likely to generate more negative LOAs. If that’s not the reason for the suggestion, would like to
understand what it is, in order to make more useful commentary if possible. Perhaps this can be addressed by PatCom at the meeting.
2. With respect to the specifics of the proposal D.1 on the December PatCom meeting agenda, the form language recommended for D.1.d might
be beneficially modified as below, in order to maintain the avoidance of an obligation to do a patent search, recognized in the policy:
D.1.d: The Submitter is unwilling or unable to grant licenses according to the provisions of either
a or b above or to agree that it will not enforce its Essential Patent Claims as described in c
above. This statement applies only to the Patent Claims of which the Submitter is aware, identified in E.1 below.
3. Regarding the meeting minutes from June: Why in the meeting minutes are the speeches by Delrahim are not reported as US Government or
at least DoJ positions? There was discussion at the meeting on this very question. Those speeches were not personal opinions, and I thought that was understood by the members of PatCom, and yet the record reflects the potential misimpression.
Thank you for your attention.
Best regards,
Michael.
From:Dave Ringle <d.ringle@xxxxxxxx>
Sent: Tuesday, November 27, 2018 2:02 PM
To: PP-DIALOG@xxxxxxxxxxxxxxxxx
Subject: [PP-DIALOG] PatCom: Report Out from the 27 November 2018 Executive Session meeting
PatCom further discussed the proposal from agenda item 6.1 of the June PatCom meeting and took no action on the proposal.
(See
https://standards.ieee.org/content/dam/ieee-standards/standards/web/governance/patcom/618patmins.pdffor
the June meeting minutes.)
The 03 December 2018 PatCom meeting agenda remains unchanged. (See
https://standards.ieee.org/content/dam/ieee-standards/standards/web/governance/patcom/agenda.pdf)
Regards,
******************************************************************
David L. Ringle
Director, IEEE-SA Governance
IEEE Standards Association
445 Hoes Lane
Piscataway, NJ 08854-4141 USA
TEL: +1 732 562 3806
FAX: +1 732 875 0524
EMAIL: d.ringle@xxxxxxxx
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