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Dear David, Dear All, Fraunhofer has reviewed the material provided for Item 6.3 of the 5 August 2021 ProCom meeting, along with some of the material submitted as part of IEEE’s 2021 Reaccreditation application to ANSI. Fraunhofer observes that:
On the RAND aspect in the US context, when an ANSI-accredited standards developer (ASD) provides for compensation free-type of licensing commitments for essential patent
claims, there must also be a reasonable mechanism to allow patent holders to decline to license identified essential patents or essential patent claims on compensation-free terms. Section II of the ANSI Guidelines for Implementation of the ANSI Patent Policy states: An ASD’s Patent Policy may provide for compensation-free types of licensing commitments for essential patent claims, as described in Section 3.1.1
(b)(ii) of the ANSI Essential Requirements, to the exclusion of other types of commitments. However, such a policy must also contain a reasonable mechanism which would allow a patent holder to decline to license identified essential patents or essential patent
claims on compensation-free terms (such as an opt-out provision). Such a policy must also comply with Section 1.1 of the Essential Requirements, which requires that participation be open to all persons who are directly and materially affected by the standards
activity in question, including directly and materially-affected patent holders who decline to license essential patents or essential patent claims under compensation-free terms. IEEE’s proposals have not allowed for this opt-out. The proposed CLA document and its use rather appear to undermine or call into question the possibility of RAND licensing. This is because participation in any IEEE standards
development activity which involves open source software mandates the use of a CLA, which in turn mandates compensation-free licensing for both copyright (software) and patents. Such a structure does not appear to align well with the voluntary, irrevocable
undertakings provided (or which may in the future be provided) by contributors to IEEE standards. The aim should be to develop clear and transparent processes, which are relevant to both the development of standards in IEEE and the implementation of IEEE standards
in the market. · On the TBT aspects, the IEEE has
publicly stated its commitment to the WTO TBT Principles: http://globalpolicy.ieee.org/wp-content/uploads/2020/08/IEEE20013.pdf Looking at the US SDO context, Section 1.1 of the ANSI Essential Requirements states participation in an ANS shall be open to all parties who are
directly and materially interested in the activity in question and there shall be no undue financial barriers to participation. The present requirement proposed for the IEEE SA Standards Board Operations Manual (this being subject to ANSI’s reaccreditation) is that a participant
in an open source activity must sign a CLA, and that CLA shall impose a royalty-free patent license. RAND is recognized at policy and law to cater for both (i) the legitimate compensation for contributions to standards development, with it being open
to decide whether to allow access on compensation-free terms and conditions; and (ii) incentives to contribute to sustainable innovation.
It is also recognized as a basic tenet of IP that patents are a different IP asset to copyright (software), and there is no need to tie the license
of one to the other. Indeed, all sophisticated technologies will comprise of many different forms of IP. For cutting-edge, globally-competitive technology developed through SDOs, the development of such technology is achieved by open and broad participation
by all different types of contributors. IEEE´s 2021 ANSI reaccreditation application remains in progress. A complete record or summary of the public comments received as part of that application process has not been provided along with the
material presented on Item 6.3 of the IEEE ProCom meeting agenda. With respect, the material which has been provided as part of Item 6.3 does not appear to address the comments submitted to ANSI for IEEE´s 2021 reaccreditation, or risks noted above. We look forward to the meeting today, and can be available to further elaborate on the above. Sincerely, Stefanie Mielert ----- Kind regards / Mit freundlichem Gruss, Stefanie Mielert Rechtsanwältin Fraunhofer Gesellschaft zur Förderung der angewandten Forschung e.V./ Fraunhofer Institut für Integrierte Schaltungen IIS Am Wolfsmantel 33 * 91058 Erlangen * http://www.fraunhofer.de Phone: +49 (0) 9131 776 6137 Mobile: +49 (0) 173 929 6369 mailto: stefanie.mielert@xxxxxxxxxxxxxxxxx Von: Dave Ringle <d.ringle@xxxxxxxx> The 05 August 2021 ProCom agenda is available at https://standards.ieee.org/content/dam/ieee-standards/standards/web/governance/procom/agenda.pdf ****************************************************************** To unsubscribe from the PP-DIALOG list, click the following link: https://listserv.ieee.org/cgi-bin/wa?SUBED1=PP-DIALOG&A=1
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