"Update on Activities of the TIA IPR Standing Committee (IPR SC) and the new Standards and IPR Policy Committee (SI

1. "Update on Activities of the TIA IPR Standing Committee (IPR SC) and the new Standards and IPR Policy Committee (SIPC) since GSC-15" Amy Marasco, TIA SIPC Chair

2. Structure • This presentation focuses on important issues that were discussed within two TIA committees: • The TIA Standards & IPR Policy Committee (SIPC) • Reports to the TIA Board of Directors • Develops and communicates TIA standards and IPR policy positions external to TIA • Increased focus on standards and IPR issues worldwide • The TIA IPR Standing Committee (IPRSC) • IPR SC’s primary responsibility is to review and maintain TIA’s IPR Policy and associated Guidelines Document, which are available on TIA’s Web site www.tiaonline.org

3. Summary of Topics • Activities of the SIPC/IPRSC since GSC-15 in Beijing (Sept 2010) • American National Standards Institute (ANSI) proposed modifications to the “Essential Requirements” for American National Standards to address possible issues of duplicating or conflicting standards • National Institute of Standards and Technology (NIST) Request for Information (RFI) on Federal Engagement in Standardization [Department of Commerce Docket No. 0909100442–0563–02]

4. Summary of Topics cont’d • Federal Trade Commission (FTC) Request for Comments on Standard-Setting Issues, including Patent “Hold-Up” [Project No. P11-1204] • Informational: EU Horizontal Cooperation Agreement Guidelines • Informational: European Interoperability Framework (Version 2) Released • Informational: Indian Government Releases Policy on Open Standards for e-Governance

5. Summary of Topics cont’d • Updates/Alterations to TIA’s Engineering Manual by the IPRSC • Recommendations

6. American National Standards Institute (ANSI) proposed “Essential Requirements” • In late 2010, ANSI proposed changes to its “Essential Requirements” (ERs) document • Specifically, ANSI proposed that ANSI Accredited Standards Developers (ASDs) be required to conduct “a preliminary comprehensive review of existing projects to ensure that the contemplated project does not conflict with or duplicate a previous one,” as well as “outreach to other SDOs involved in similar areas to ensure that a standard does not already exist or is under development.” • TIA submitted comments to express concerns regarding the proposed “good faith” effort requirements on ASDs to “minimize unnecessary duplication” of standards absent a proven, “compelling need” (Section 2.4.3 of proposed ERs)

7. American National Standards Institute (ANSI) proposed “Essential Requirements” • TIA believes that these proposed requirements would hamper the ability of ICT ASDs to respond in a timely manner to rapidly changing market demands and inhibit innovation in the ICT standardization system: • “Namely, such processes could create a ‘race to be first’ incentive, or in other words, one ASD could, by virtue of publishing an ICT standard before any others in a general technology area, seek to preclude further standards development in that area by other ASDs. TIA submits that this approach could have an adverse impact on the ability of ASDs to compete and develop standards in the same technology area that may address different user needs. This in turn could further inhibit innovation in the ICT standards development system and the ability of new standards solutions to compete in responding to changing marketplace needs.”

8. American National Standards Institute (ANSI) proposed “Essential Requirements” • ANSI held a workshop on this topic on May 12, 2011, titled “Standards Wars: Myth or Reality?” • Excerpt from workshop report (see http://www.ansi.org/meetings_events/events/2011/standards_wars.aspx?menuid=8:) • “During the workshop it became apparent that some stakeholders clearly believe that multiple standards in a given market reflect a healthy and competitive environment, while others maintain that too many standards really means that there is no standard and so the system is broken. Sector‐specific needs were also highlighted, particularly in the ICT space. Many acknowledged that competition is fine in one or a limited number of sectors or in relation to one type of standard, but cannot so easily be tolerated in other areas.”

9. American National Standards Institute (ANSI) proposed “Essential Requirements” • On September 23, the ANSI ExSC transmitted its decision on the proposed changes to the ANSI ERs: • As a result of comments received, ANSI ExSC decided that the proposed revisions should not proceed as presented in 8096, and withdrew the proposal. • Instead, the ANSI ExSC has put forth ExSC 8189, which is more limited and “focuses on the timeliness of the PINS Deliberation and follow-up process, with a goal of ensuring that agreed upon actions proceed at a reasonable pace.” • In addition, ANSI is announcing that the ExSC will: • [1] work on developing “additional guidance text for inclusion in the current PINS Informational Summary or a new related document” (the PINS guidance document is attached), as well as • [2] form a working group to further develop the proposed definition of “duplication.” • Lastly, ANSI notes that they continue to work on a public database to better support stakeholders in standards development.

10. NIST RFI on Federal Engagement in Standardization • On behalf of the National Science and Technology Council’s (NSTC) Sub-Committee on Standardization, NIST sought public comment (Request for Information) on Federal agency participation in the development and implementation of standards and conformity assessment activities and programs • Specifically, comment was sought on: • Standards-Setting Processes, Reasons for Participation and the Benefits of Standardization • Perspectives on Government’s Approach to Standards Activities • Issues Considered during the Standards Setting Process (including IPR) • Adequacy of Resources • Process Review and Improvement Metrics

11. NIST RFI on Federal Engagement in Standardization • TIA’s filing is available here: http://www.tiaonline.org/gov_affairs/fcc_filings/documents/TIA%20Comment%20to%20NIST%20on%20Standards%20022211.pdf • TIA submitted in its comment that voluntary, consensus-based standards promote efficiency and interoperability and enable access to new technologies and markets • TIA noted that, for governmental entities, the ability to partake in voluntary consensus standard development has many benefits and is consistent with goals of the U.S. Government as reflected in the National Technology Transfer and Advancement Act and OMB Circular A-119

12. NIST RFI on Federal Engagement in Standardization • TIA noted support for IPR policies which allow patent holders to make commitments to offer licenses to essential patented technology on reasonable and non‐discriminatory (RAND) terms and conditions, with or without compensation • TIA noted its endorsement of the GSC-15-affirmed definition of the term “Open Standard” • TIA noted that mandating the ex ante disclosure of specific licensing terms within such standards bodies would have a chilling effect on participation, contributions and the resulting standards

13. GSC16-IPR-04 US Government Report on Federal Engagement in Standardization • On October 14, the NSTC SoSreleased its report titled “Federal Engagement in Standards Activities to Address National Priorities: Background and Proposed Policy Recommendations.” • This report is available at: http://www.whitehouse.gov/sites/default/files/microsites/ostp/federal_engagement_in_standards_activities_october12-final.pdf • This report: • Provides an overview of the current legal and policy frameworks for government engagement in private-sector standardization and conformity-assessment activities; • Describes how the government engages in those activities; • Summarizes stakeholder observations in response to the request for information about government engagement in standardization (which TIA submitted comments on); and • Outlines policy recommendations to supplement existing guidance to agencies.

14. GSC16-IPR-04 US Government Report on Federal Engagement in Standardization • Key excerpts: • “Responses indicated that Federal agency participation in standardization activities can have one of two effects: (a) agency involvement can contribute positively to standardization activities, resulting in an overall improvement in product reliability and cost containment or, (b) agency involvement can limit or hinder the advancement of technology, resulting in mandates that detract from research and development efforts in response to market-driven forces.” • “Several questions specific to intellectual property rights (IPR) in standards were included in the RFI. A number of respondents noted that there is no one ideal, one-size-fits-all IPR policy and that standards organizations are in the best position to establish effective policies for addressing IPR issues related to the standards they develop. The respondents specifically recommended that IPR policies of standards organizations need to take into account the interests of both IPR holders and those seeking to use or implement the IP included in the standard or standards. Also, standards organization IP policies should be easily accessible and the rules governing the disclosure and licensing of IPR should be clear and unambiguous.”

15. GSC16-IPR-04 US Government Report on Federal Engagement in Standardization • Key excerpts cont’d: • “Agencies should take into account the impact of their standards choices on innovation and the global competitiveness of U.S. enterprises, including the impact of intellectual property incorporated in standards, and should explicitly include consideration of conformity assessment approaches that enable the least burdensome compliance with standards specified by agencies.”

16. GSC16-IPR-04 NIST RFI on Federal Engagement in Standardization • Key excerpts cont’d: • “A limited set of foundational attributes of standardization activities are called out in OMB Circular A-119, focusing on voluntary, consensus standards activities. It is important to recognize as well the contributions of standardization activities that take place outside of the formal voluntary, consensus process, particularly in emerging technology areas. The following additional attributes should also be considered, to maximize the impact of those activities on enabling innovation and fostering competition, while also assuring fulfillment of agency regulatory, procurement, and policy missions: [see next slide]”

17. GSC16-IPR-04 NIST RFI on Federal Engagement in Standardization • “Transparency: essential information regarding standardization activities is accessible to all interested parties. • Open Participation: all interested or affected parties have an opportunity to participate in the development of a standard, with no undue financial barriers to participation. • Flexibility: different product and services sectors rely on different methodologies for standards development that meets their needs. • Effectiveness and Relevance: standards are developed in response to regulatory, procurement and policy needs, and take account of market needs and practices as well as scientific and technological developments. • Coherence: the process avoids overlapping and conflicting standards. • International Acceptance: as product and service solutions cross borders, the public and private sectors are best served by standards that are international in scope and applicability. • Net Benefit: standards used to meet regulatory and procurement needs should maximize net benefits of the use of such standards.”

18. GSC16-IPR-04 NIST RFI on Federal Engagement in Standardization • Key excerpts cont’d: • “In addition, agencies should give consideration to the following attributes of standards organization processes: • Access and Availability: the text of standards and associated documents should be available to all interested parties on a reasonable basis, which may include monetary compensation where appropriate. • Clear Intellectual Property Rights (IPR) Policies: standards organization IPR policies should take into account the interests of both IPR holders and those seeking to use or implement the IP included in the standard or standards. These policies should be easily accessible and the rules governing the disclosure and licensing of IPR should be clear and unambiguous. • Timeliness: standards should be available in a timely manner.”

19. FTC Request for Comments on Standard-Setting Issues, including Patent “Hold-Up” • In early May 2011, the FTC issued a call for comment seeking to examine the legal and policy issues surrounding the perceived problem of “hold-up” when patented technologies are included in collaborative standards • Specific topics addressed were: • Disclosure of Patent Rights in an Standard Setting Organization (SSO) • The RAND Licensing Commitment • Ex Ante Disclosure and/or Negotiation of Licensing Terms • Comments can be found at: http://www.ftc.gov/opp/workshops/standards/index.shtml • TIA expressed the view that, based on its experience, “patent hold-up” is not a systemic problem in connection with standard development • TIA noted that it “has never received any complaints regarding such ‘patent hold-up’ and does not agree that ‘patent holdup’ is plaguing the information and telecommunications technology (ICT) standard development processes.”

20. GSC16-IPR-04 FTC Request for Comments on Standard-Setting Issues, including Patent “Hold-Up” • “TIA urge[d] the FTC to view ‘patent hold-up’ under a much narrower scope that reflects the realities of standards-related patent licensing as opposed to taking a more theoretical approach, and to thus limit ‘patent hold-up’ to instances where the holdup is clearly due to intentional and deceptive conduct supported by substantial and substantive evidence.” • TIA noted that “RAND commitments can and do prevent IPR holders from making the implementation of a standard difficult by refusing to license or by seeking unreasonable or discriminatory fees after the industry has been locked into the standard.” • TIA stated that it “does not believe there is a need to define RAND.” • “RAND has been adopted by standards organizations as a flexible approach to the inclusion of patented intellectual property in consensus-based standards.”

21. GSC16-IPR-04 FTC Request for Comments on Standard-Setting Issues, including Patent “Hold-Up” • TIA further observed that “[e]x ante disclosure of one set of terms and conditions fails to recognize the diversity in standards, licensing arrangements, and business interactions. RAND based policies, however, recognize this diversity.” • The FTC held a forum on June 21, 2011, to examine this topic further.

22. INFORMATIONAL EC Horizontal Cooperation Agreement Guidelines • The European Commission’s DG Competition announced its “Revised rules for the assessment of horizontal cooperation agreements under EU competition law” in December 2010 (see http://ec.europa.eu/competition/antitrust/legislation/horizontal.html) • These Guidelines describe the features of a standardization process and a related IPR policy that would fall within a “safe harbour” (Paragraphs 280-286): • While called “guidelines”, they will create legal presumptions as to the assessment of such procedures and policies under EU competition law • The Guidelines also confirm that standardization procedures and rules that do not fall within the “safe harbour” do not necessarily raise any competition law concerns, and the Guidelines outline a list of factors that would underlie any “effects-based” analysis that would be applied in assessing any such procedures and rules

23. INFORMATIONAL European Interoperability Framework (version 2) • The European Commission also announced its European Interoperability Framework (version 2) in December 2010 (see http://ec.europa.eu/isa/policy/index_en.htm) • The document provides a definition and approach for using “open specifications” • “If the openness principle is applied in full: • All stakeholders have the same possibility of contributing to the development of the specification and public review is part of the decision-making process; • The specification is available for everybody to study; • Intellectual property rights related to the specification are licensed on FRAND terms or on a royalty-free basis in a way that allows implementation in both proprietary and open source software. • However, public administrations may decide to use less open specifications, if open specifications do not exist or do not meet functional interoperability needs.”

24. INFORMATIONAL Indian Government Releases Policy on Open Standards for e-Governance • In November of 2010, the Indian Ministry of Communications & Information Technology’s Department of Information Technology released its “Policy on Open Standards for e-Governance” • Clause 4.1.2 states that, for recognized open standards, “[t]he Patent claims necessary to implement the Identified Standard shall be made available on a Royalty-Free basis for the life time of the Standard” • However, in instances when a suitable standard does not meet this criteria, the following priority list is created (Clause 4.3): • Standards with RAND conditions and no royalty payment should be used • Failing that, the requirement that the standard originate and be maintained by a non-profit is relaxed • Failing that, those with RAND condition and royalty payments should be used

25. Updates/Alterations to TIA’s Engineering Manual by its IPRSC • TIA’s IPRSC is currently undertaking an effort to update and consolidate into one standalone document all IPR-related topics.

26. Recommendations • TIA supports GSC-16 reaffirming all three of the Resolutions previously developed by the GSC SIPC • GSC-15/22 Intellectual Property Rights Policies • GSC-15/23 Cooperation with Patent and Trademark Offices • GSC-15/24 Open Standards

27. Thank You!