| Thread Links | Date Links | ||||
|---|---|---|---|---|---|
| Thread Prev | Thread Next | Thread Index | Date Prev | Date Next | Date Index |
|
Gil and Harald, and John. With the policy change 3+ years in the rear view mirror now, perhaps the best we can do is try to apply TBT principles to future policy changes and seek consensus, balance etc., rather than super majorities against sustained opposition,
for all future policy changes. Those principles have been and are scrupulously applied to standardization in IEEE standards work, so it is hard to understand why they would not be applied to IPR policy change which is so important to incentivizing standards contributions.
I would support such a governance change. Best, Michael. From: "Kolakowski, John (Nokia-TECH/Herndon)" <john.kolakowski@xxxxxxxxx> Gil, I seem to recall that you are correct about the vote counts at the SASB and the BOG, but I don’t think one should read much significance into those votes. My impression was that most of the voters in those bodies who did not participate
in the debate at PatCom were simply willing to defer to PatCom and thus approve the revisions. And, unfortunately, I believe most of the substantive discussion at both the SASB and BOG was undertaken in executive session, so we don’t have much insight into
the rationale behind a lot of the votes (which at least as I recall for the SASB were even done by “secret” ballot). --John From: Gil Ohana (gilohana) <00000b67ee67ba19-dmarc-request@xxxxxxxx>
Thanks Harald. Others may recall the specific vote counts, but my recollection is that the updated patent policy text was approved by large supermajorities of both the Standards Association Standards Board and
the Standards Association Board of Governors. Best regards, Gil From: Heiske, Harald <harald.heiske@xxxxxxxxxxx>
Hi Gil, gesendet von einem mobilen Gerät / sent from a mobile device / envoyé d'un appareil portable Von: "Gil Ohana (gilohana)" <00000b67ee67ba19-dmarc-request@xxxxxxxx> Hi Michael, Thanks for your e-mail. I appreciate the kind words at the beginning of your e-mail. I fear that your concern with a discussion of what you refer to as “intentionality” is misplaced. There is what (to channel
Al Gore) might be referred to as an “inconvenient truth” that members of PatCom, the Standards Board, and the BOG may wish to reflect upon as they evaluate the views expressed by different companies.
The inconvenient truth goes like this: in the discussion leading up to the 2015 updates to the patent policy text, a number of companies argued against the adoption of the changes. A few put up a website critical
of the IEEE. As was publicly reported, one tried to directly influence IEEE directors by slipping content under hotel room doors. This opposition was, as we know, unsuccessful, and the IEEE Board, like the Patent Committee, the Standards Board, and the BOG,
approved the text updates. One response that opponents of the text updates might have chosen to that unwelcome development would have been to respect the decision of the majority. Unfortunately, that has not been what we have seen. What
we have seen instead is what I referred to in my earlier e-mail as the sustained effort to disparage the Standards Association, both by the companies themselves and by disclosed and (one suspects) undisclosed agents. I can provide examples if you are interested. My point is not to say that the objecting companies should not be engaging in public advocacy to criticize the SA. That is their right. But it is equally the right of others, including members of PatCom, the
Standards Board, and the BOG to take note of the campaign of disparagement some companies have launched in evaluating whether those companies are really focused on what is best for standards development at the Standards Association. If that is what you mean
by “intentionality”, then it is entirely appropriate for me to raise it, and for others to consider it in deciding whether to support the current proposal to require identification of patents subject to a negative declaration. They can and should think about
which companies are objecting, and whether those objectors have the best interests of the Standards Association at heart. Best regards, Gil Ohana From: Michael Atlass <matlass@xxxxxxxxxxxx>
Dear Gil, While there are some reasonable statements in the email you sent to PP-Dialog which may represent a fair point of view, it seems to me it would be best for all, if all of us merely address the issues rather than the intentionality of the
senders of email. I do not see how it can be beneficial to seek to label folks as “fellow travelers” or “Cassandras.” Most of us work for companies or other entities with differing business models, and it is unlikely that we deeply understand each other’s,
let alone presume we know how success under other’s business model is achieved or what intentionality participation in another’s business would require.
Accordingly I will limit my comments. First, I note that the link you provided to the Bekkers paper was not fulfilled when I tried it. I believe the European Patent Office is working on dealing with the issues you refer to the article for, (allowing for citation of standards
specs for prior art in prosecution) and perhaps we can discuss that if you are attending the meeting tonight.
Second, while the IPR policy of the Wireless Gigabit Alliance was marked confidential when I saw it, the policy was not solely Royalty Free, and the opt outs were not to refusals to license. Perhaps you were thinking of a different example.
Third, from my perspective, incentivization to patent holders to make FRAND promises is a key to letting SMEs get relatively cheap access to patents owned by systems houses and other organizations who participate in standardization. I believe
that to the extent a FRAND policy incentivizes the best patentable contributions, it is optimized to create the best standards for the public. In that light, anything which disturbs incentives for patent holders to contribute under a FRAND regime to the creation
of standards, reduces the benefit standardization provides to dynamic competition. I think we should all be able to come to reasoned agreement within that competition-supporting framework, and be able to respect each other’s points of view as we do so. Best regards, Michael. From: "Gil Ohana (gilohana)" <00000b67ee67ba19-dmarc-request@xxxxxxxx> Thanks Elisabeth. There is a lot in your e-mail with which I disagree (or, as you might say, “with which it is disagreed” <g>). I did want to address two issues in particular: (1)
You state that the rationale for the proposal has not been explained. It’s not my proposal, and I will let others closer to the development of the proposal speak for themselves. I would note that under the present patent
policy, companies with business models based on SEP licensing can participate in the development of an IEEE-SA standard, gain insight into the direction of the standard by observing contributions and participating in technical discussions, use what they learn
to direct their patenting decisions, refuse to license patents they obtain (based, potentially, on the insight they gain from participation), and not disclose the specific patented inventions they are refusing to license.
That is not a sustainable situation. I recognize that the current patent policy text, like its predecessors, has permitted a “refuse to license” option. Unfortunately, a small but vocal group of companies
(of note, companies that are simultaneously engaged in an active campaign to disparage the IEEE Standards Association whenever they can) have made increasing use of that option in one particular IEEE standards development activity, 802.11. It’s time for IEEE-SA
to respond to the choice by those companies to make increasing use of “refuse to license” LoAs by requiring companies using “refuse to license” LoAs to identify what patents and applications they are refusing to license. That will permit others involved in
standards development at IEEE-SA to make informed decisions regarding whether they can design around the inventions that are the subject of the “refuse to license” LoAs. If the patented inventions are fundamental, that will be hard to do. If they are not,
it may be easy to do. Given that, it’s difficult to see how the proposal to require the identification of specific patents “harms innovation”. What it may harm is “just in time” patenting of the kind that has been observed at other standards development
organizations (as discussed further in an interesting paper co-authored by Rudi Bekkers and available
heFirsre). That’s a price we should all be willing to pay.
I would also note the connection between the proposal you criticize and the interest some companies participating in IEEE-SA standards development have shown in the formation of SIGs that operate on the
sidelines of IEEE standards development in 802.11 and other working groups. One of the benefits of SIGs is that they can operate under bespoke IPR policies that give participants better visibility into the patents other participants own. To pick a recent
example, the Wireless Gigabit Alliance, responsible for the core technical innovations of the IEEE 802.11ad wireless gigabit standard, operated under an RF IPR policy that permitted participants to refuse to license specific declared patents they identified
at the end of the specification development process. As those of us who regularly review IPR policies know, that is a very common feature of SIG and consortia IPR policies. Such a “negative declaration” option gives participants in standards development
an assurance that SEPs will be available for license, excluding only specifically identified patents or applications. Adoption of the D.1.d LOA proposal would be a move in the same direction, and might therefore address one concern that has led to the formation
of SIGs. Failure to adopt the D.1.d proposal would send a message that participants seeking licensing assurances and information about withheld patents and applications must develop structures outside the IEEE-SA standards development process to further that
goal. (2)
I also wanted to note your observation that: There is a concern that the proposed amendment will increase the cost of participation in IEEE in terms of time and resources needed to gather all the required information, thus resulting
in a barrier to entry to standardisation and posing a risk from an antitrust law perspective. In particular, small- and medium-sized enterprise and start-up companies may lack the necessary resources to undertake the task and therefore might not be able to
compete to have their technology incorporated in IEEE´s technical standards, ultimately harming the average quality of IEEE standards. If you believe that the adoption of an IPR policy where the default was that licenses would be made available, subject to an exception for specifically identified patents, indeed poses a risk
from an antitrust law perspective, you should communicate that concern to some of your fellow travelers, who regularly join SIGs and consortia governed by IPR policies structured that way (as, I should point out, does Cisco). Given the proliferation of organizations
with that kind of IPR policy, it is hard to take seriously the concern that such IPR policies result in a “barrier to entry to standardisation”. Indeed, it seems like it would be easier for a company with a smaller patent portfolio to identify patents it
declines to license. Again, if those patents are fundamental, and therefore difficult or impossible to design around, the effect of the “refuse to license” declaration will likely be some effort to encourage the patentee to license on terms that are more
favorable to the patentee. That seems like a resolution that aligns incentives to innovate with the goals of standardisation. If your goal is to protect “just in time” patenting based on information learned in the standards development process, then others
should decide how much they care about discouraging that behavior or how much doing so will “ultimately harm[] the average quality of IEEE standards.” Given that the “refuse to license” behavior has been limited to 802.11, it’s hard to see how anything IEEE
does in this area would have much of an impact on “the average quality” of IEEE standards, as the IEEE creates many standards across many different areas of technology. Contrary to the Cassandras in the SEP licensing community who rejoice in bad-mouthing
the Standards Association, the increasing number of PARs in recent years suggest that the pipeline of standards under development is growing robustly. I look forward to the PatCom meeting this evening. Best regards, Gil Ohana From: Elisabeth Opie <office@xxxxxxxxxxxxxxxxx>
Dear PatCom members, PP-Dialog members, This email is sent on behalf of Stefanie Mielert, Fraunhofer-Gesellschaft. It is understood that the proposed amendments to the IEEE letter of assurance, as discussed at the last
PatCom meeting, will not be further actioned. The opportunity to provide feedback on Phil Wennblom’s further proposed amendment to the IEEE letter of assurance (“Proposal”) is welcomed (Item 6 of today’s PatCom meeting). As of today, the “D.1.d LOA Proposal” (item 6.1 of the Agenda for the next PatCom meeting) leaves an open question regarding rationale, and consistency with all IEEE documents. The
main considerations follow:
In the proposal, it is stated that “the value to the standards development process of a D.1.d LOA that identifies specific patent claims is greater than the value of a blanket D.1.d
LOA”. The reasons behind this assumption have not been shared, and further background is appreciated (for example, the source of the assumption and any counterbalancing policy issues to be considered).
If the proposal is adopted, the declaratory burden on owners of standard-essential patents will rise (perhaps significantly), since it may be thought that the patentee is obliged
to submit a separate negative letter of assurance for each patent claim (while still being able to submit a positive blanket letter of assurance). This would in turn mean that the risk of not specifying all the relevant standard essential patents and required
information would increase, together with all the attached liabilities, particularly under antitrust law. In this regard, the different regime proposed for positive and negative blanket letters of assurance appears to create a prejudice against those companies
that cannot or do not determine to have their investments in R&D impacted by the IP policy currently in place within IEEE and, subsequently, have submitted negative letters of assurance. The different treatment of positive and negative letters of assurance
without apparent justification could be seen as discriminatory towards patent holders and unfairly raise costs and risks of participation in IEEE. Without more, the proposal may also lay the foundation for claims of waiver of IP rights, should a relevant patent not be listed in a negative letter of assurance (see implied waiver
elements argued in Core Wireless v. Apple).
From another perspective, in order to reduce any increased risk of patent ambush or waiver of IP rights allegations, owners of standard essential patents might err on the side of
caution and over declare. This in turn could result in uncertainty for stakeholders, or on the flip side prolong negotiations through extensive challenges.
It is noted that the majority of current blanket letters of assurance do not list patent numbers. There is a concern that the proposed amendment will increase the cost of participation
in IEEE in terms of time and resources needed to gather all the required information, thus resulting in a barrier to entry to standardisation and posing a risk from an antitrust law perspective. In particular, small- and medium-sized enterprise and start-up
companies may lack the necessary resources to undertake the task and therefore might not be able to compete to have their technology incorporated in IEEE´s technical standards, ultimately harming the average quality of IEEE standards. Proposed amendments to the IEEE-SA Standards Board Operations Manual Matteo Sabattini’s proposal regarding this section is supported: A Submitter may provide the IEEE with a Blanket Letter of Assurance only when the Letter of Assurance indicates licensing assurance. A
Submitter may provide the IEEE with a Blanket Letter of 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. Suggested Next steps In light of the abovementioned concerns, it is requested that the IEEE-SA Standards Board Patent Committee exercise caution in its deliberations, in consideration of the overall innovation
system. If the proposal should be approved, could consolidated reasons be provided (for and against). Should the proposal proceed, then in order to ensure that (i) the proposal is consistent with the rest of the letter of assurance and other relevant sections of the IEEE governing
documents; and (ii) no patent search is required, it is further asked ask that the proposal be amended as follows: LOA Form: 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 only applies to the Patent Claims of which the Submitter is reasonably aware, identified in E.1 below. In addition to the following: 6.3.4 Multiple Letters of Assurance and Blanket Letters of Assurance (IEEE-SA Standards Board Operations Manual) A Submitter may provide the IEEE with a Blanket Letter of Assurance only when the Letter of Assurance indicates licensing assurance. A
Submitter may provide the IEEE with a Blanket Letter of 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. Proposed New FAQ (maybe 81A): Is it permissible for an LOA with D.1.d selected to be a Blanket LOA? No. As of 01 January 2019, a Submitter may provide a Blanket Letter of Assurance to IEEE only when the LOA indicates licensing assurance. (See also question 28A.) Given the proposed 81A, and in continued pursuit of transparency, allowance should be made for licensing information to be indicated for any negative letters of assurance (eg weblink).
This was contemplated in the earlier proposal and is a missing element here. It is considered that this would go towards bringing increased value to the standards process (eg providing clarity to the market). Draft Meeting Report On a separate agenda topic, Fraunhofer earlier requested that the draft meeting report be amended to reflect discussions at last meeting. Regarding the agenda item on updates from
the Department of Justice Antitrust Division, could you please replace “speeches” with “policy statements”. Thank you, Michael Atlass among others, for flagging this as well. AAOP Proposal Thank you to Cindy Bianlixin for pursuing other possible means of addressing transparency. After careful consideration, the AAOP proposal is not supported for the same reasons stated
for the original proposal. Proposed FAQ 28A The purpose of the disclaimer, and a discussion on the proposed FAQ, is welcome. This will have to be reconsidered in light any actual amendments to the letter of assurance and the
Operations Manual, along with Sandy Block’s proposed addition. As a final general comment, transparency in relation to standards development and standard essential patents is supported and should be reflective of context – being (i) the nature
of R&D; (ii) the nature of IP; and (ii) dynamic standards development. If the objective of the subject proposal is to achieve greater transparency, certainty and efficiency in the licensing of standards essential patents, it is respectfully concluded that
these objectives do not appear to be promoted by the proposal. I hope that these observations and suggestions are helpful to the deliberation of the proposal, and would be happy to discuss any element in further detail. Wishing you a good meeting. Sincerely, Stefanie Mielert, Fraunhofer-Gesellschaft ---------------- Kind regards / Mit freundlichen Grüßen, +49 89 7407 6475 (direct) 80333 Munich From:
Dave Ringle <d.ringle@xxxxxxxx> 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 ****************************************************************** To unsubscribe from the PP-DIALOG list, click the following link:
https://listserv.ieee.org/cgi-bin/wa?SUBED1=PP-DIALOG&A=1
To unsubscribe from the PP-DIALOG list, click the following link:
https://listserv.ieee.org/cgi-bin/wa?SUBED1=PP-DIALOG&A=1 To unsubscribe from the PP-DIALOG list, click the following link:
https://listserv.ieee.org/cgi-bin/wa?SUBED1=PP-DIALOG&A=1 To unsubscribe from the PP-DIALOG list, click the following link:
https://listserv.ieee.org/cgi-bin/wa?SUBED1=PP-DIALOG&A=1 To unsubscribe from the PP-DIALOG list, click the following link:
https://listserv.ieee.org/cgi-bin/wa?SUBED1=PP-DIALOG&A=1 To unsubscribe from the PP-DIALOG list, click the following link: https://listserv.ieee.org/cgi-bin/wa?SUBED1=PP-DIALOG&A=1
To unsubscribe from the PP-DIALOG list, click the following link: https://listserv.ieee.org/cgi-bin/wa?SUBED1=PP-DIALOG&A=1 |