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Dear Dave, Thank you for highlighting some of the findings of the 2019 study on OSS and standards commissioned by the European Commission and its Joint Research Centre (JRC): https://publications.jrc.ec.europa.eu/repository/handle/JRC117836. Without further information, it is difficult to discern what point you are trying to make, other than highlighting the format of the ppt. used for presenting the study findings. The Report itself states
that all views expressed in the report are those of the authors only. Fraunhofer submitted its views on the findings of the JRC study on open source and standards during the relevant stakeholder consultation process organized by JRC. These views are consistent with Fraunhofer’s
briefer statement regarding the co-existence of patents and software that is set out in its response to the recent call for public comment on the proposed approval by IEEE OSCom of CERN 2.0 OHL. For ease of reference, this response is located here: In the context of Agenda Item 6.3 of the IEEE ProCom Meeting of 5 August 2021, we observe that the IEEE has always dealt with patents and copyright (including software) separately. See, for example,
the IEEE SA Standards Board Bylaws (patents are governed by section 6 of the Bylaws (IEEE Patent Policy), and copyright by section 7 of the Bylaws (IEEE Copyright Policy). Each Policy provides for its own definitions and substantive provisions regarding contribution of patented inventions (contributors file a LoA) and copyrighted material (contributors grant IEEE a copyright
license). Patents and copyright are also clearly distinguished in the IEEE SA Standards Board Operations Manual (section 6.1 for copyright and section 6.3 for patents). It would be helpful if you could provide further details on the photo of the slide you attached (e.g., date, forum), along with details on whose behalf you are requesting this clarification, so that
we can share the entire presentation (subject to it being publicly available). This will ensure the image you presented is viewed in its proper context. Sincerely, Stefanie ----- 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 Djavaherian <dave@xxxxxxxxxxxxxx> I recall that, a couple years ago at an event hosted by the European Commission, the EC’s study group led by Fraunhofer recommended that standards organizations retain and preserve the Open Source
Definition in their work on open source, noting that any other approach would not be accepted in the open source community (thereby undermining efforts to engage and collaborate with that important set of developers and stakeholders). See attached slide from
that presentation, at point 7. Has Fraunhofer’s perspective on this issue changed? It has long been clear that the Open Source Definition would require that patents (not just copyrights) be included so that no further negotiations are required to use the
relevant software. https://opensource.org/node/906;
https://opensource.org/node/616;
https://opensource.org/osr.
(Before anyone asks – I do not have the full slide deck from the EC presentation – but if anyone else does feel free to circulate.) In regard to the comments about participation, my understanding is that anyone would be permitted to participate in IEEE OSS projects, and that no one would be required to contribute code (and thus become subject to the
chosen licensing obligations for the project). So I’m not sure I even understand the stated concerns about purported “involuntary” obligations given the entirely voluntary nature of the process. From: "Mielert, Stefanie" <stefanie.mielert@xxxxxxxxxxxxxxxxx> Dear Gil, Thank you for sharing your perspective. Please note that the
official ANSI guidance document on the ANSI Patent Policy is “Guidelines for the Implementation of the ANSI Patent Policy”. See
https://share.ansi.org/Shared%20Documents/Standards%20Activities/American%20National%20Standards/Procedures%2C%20Guides%2C%20and%20Forms/ANSI%20Patent%20Policy%20Guidelines%202019.pdf We observe that page 6 of the ExSC decision you shared expressly states that the ExSC is not bound by anything which was not approved by the National Policy Committee or otherwise delegated to the
ExSC. While the 2016 decision states that the ExSC is not bound by US law, case law or other law, this way of thinking would also apply to a document setting out personal views on the ANSI Patent Policy
as was already pointed out (confirmed in fn 1 of the ANSI publication you attached to your email). The text you attached (“Understanding ANSI’s Patent Policy – A Primer”)
does not appear to be a binding version but rather an interpretation of the official ANSI guidance document (“Guidelines for the Implementation of the ANSI Patent Policy”,
for ease of reference see link above). We would be happy to arrange a discussion if it assists, as Fraunhofer’s comments on Item 6.3 have taken into account the fuller legal, policy and IEEE context. IEEE when seeking to modify its operational
procedures must make sure to comply with i) IEEE official guidance documents, ii) ANSI official guidance documents (in order to be subject to successful (re-)accreditation by ANSI) and iii) applicable laws. All of which can best be assessed from official
source documents. Yours 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:
"Gil Ohana (gilohana)" <00000b67ee67ba19-dmarc-request@xxxxxxxx> Though further comment may not be necessary given the result of the ProCom meeting, I would also note that a number of ANSI accredited standards development organizations have patent policies that provide for mandatory
royalty-free licensing without the possibility of opt-out. The example I am most familiar with is the American Petroleum Institute, a leading trade association and developer of standards in the US oil and gas industry. The API patent policy is in Section
6.4.2 of the attached document, available on API’s website. For convenience, I am pasting the text of Section 6.4.2 below, with the operative text describing what the licensing commitment API requires highlighted: 6.4.2 Patents It is API’s intent to fully comply with the 2019 edition of the ANSI
Essential Requirements: Due Process Requirements for American National Standards
and sets forth the following additional policy statements that are also compliant with the 2019 edition. As a general rule, API standards are developed using performance-based language. In accordance with 5.2,
Due Process,
any patent holder may participate in API standards activities, but patents which would be required for compliance with that standard should not be included in API standards. These types of patents may, in exceptional circumstances, be included in API standards provided that: (i) there are significant technical reasons why the standard cannot be drafted without the use of terms covered by patent rights, and (ii) where the patent holder, and any successors or assigns, are bound by an agreement in written or electronic form to a letter of assurance approved by the API Office of General Counsel granting either: a) a royalty free license under reasonable terms and conditions that are demonstrably free
of any unfair discrimination to applicants desiring to utilize the license for the purpose of implementing
the standard, or b) a release to API and all users of the document from any claims of patent infringement based
on the publication or use of the standard. My dim recollection is that when API adopted this policy around a decade ago, some of the same companies that have (repeatedly) tried to cause ANSI to dis-accredit IEEE-SA sought to challenge ANSI’s re-accreditation of
the American Petroleum Institute. I will try to find additional information about the API reaccreditation dispute and provide it as soon as possible. Thankfully, the companies that sought to cause ANSI to dis-accredit API were no more successful in that
effort than they have been in their (repeated) efforts to dis-accredit the IEEE Standards Association. Best regards, Gil Ohana From: Gil Ohana (gilohana) <00000b67ee67ba19-dmarc-request@xxxxxxxx>
Dear Stephanie, Thank you for your intervention. It’s unfortunate that you shared your extensive comment 45 minutes before the start of the ProCom call, but perhaps you were hoping to avoid a substantive response. Given the time available,
I can do no more than attach ANSI’s 2016 decision rejecting the appeal submitted by Qualcomm, Ericsson, and Alcatel-Lucent challenging ANSI’s decision to reaccredit IEEE-SA following the 2015 adoption of updates to the IEEE-SA Patent Policy. ANSI’s decision
disposes conclusively of a number of the arguments you made in the intervention you submitted shortly before the call. I am also attaching an ANSI publication from last year entitled “Understanding ANSI’s Patent Policy – A Primer”. The text on page 11, copied below, addresses the question of whether royalty-free policies are consistent
with the ANSI Essential Requirements: C. Requirements Relating to Royalty-Free Licenses
An ASD may also customize its patent policy to require only compensation-free types of licensing commitments for essential patent claims, as described in Section 3.1.1(b)(ii) of the Patent Policy.10
As with other terms, such policies also
might contain a mechanism allowing a patent holder to decline to license essential patent claims on compensation-free terms (such as an opt-out provision). (italicization provided by me) As standards professionals well know, “might” is permissive. Had ANSI meant to prohibit the use of royalty-free patent policies without provisions permitting a patentee from refusing to license, ANSI would have used
“shall” or “must”, not “might”. I look forward to the discussion during the ProCom call today. Best regards, Gil Ohana From: Mielert, Stefanie <stefanie.mielert@xxxxxxxxxxxxxxxxx>
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 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:
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