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A Review of IPR Policy Revisions in the Wake of Antitrust Actions

A Review of IPR Policy Revisions in the Wake of Antitrust Actions. Anne Layne-Farrar, Vice President SIIT 2013. The Research Question. Several competition agencies have suggested intervening in the cooperative standard setting process

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A Review of IPR Policy Revisions in the Wake of Antitrust Actions

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  1. A Review of IPR Policy Revisions in the Wake of Antitrust Actions Anne Layne-Farrar, Vice President SIIT 2013

  2. The Research Question • Several competition agencies have suggested intervening in the cooperative standard setting process • Stated goal is to correct the perceived problems with patent disclosure and FRAND licensing, such as patent holdup • Numerous proposals for changes to SSO IPR policies have been made as well • Mandating rules governing what can and cannot be done with “standard essential patents” • But while several good studies of current policies, little research on what SSOs have done over time to address perceived problems

  3. The Antitrust Debate Over Time

  4. Patent Ambush, 1995 Proactive Reactive • IEEE (1995): • Patented technology only included if “necessary” and RAND commitment • TIA (2001): • Patent disclosure form • CEN/CENELEC (2001): • Patent disclosure rules • OASIS (2005): • Patent disclosure obligation • VITA (2007): • Mandated patent disclosure • ANSI (1967): • No standard issued without disclosure and RAND commitment • ISO (1989): • Obligation among patent holders to disclose all essential patents • ETSI (1993): • Disclosure obligation (licensing Undertaking)

  5. Breach of FRAND – Excessive Rates, 2005 Proactive Reactive • TIA (2005): • Patent can’t be used for monopoly • OASIS (2005): • Binding licensing commitment • IEEE (2007): • LOA w/optional term disclosure • VITA (2007): • Mandatory term disclosure • ISO/IEC/ITU (2008): • Actions against non-FRAND • CEN/CENELEC (2009): • Binding licensing commitment • ANSI (1932): • Inclusion of patented technologies “considered favorably” if the patent holder is “willing to grant such rights as will avoid monopolistic tendencies…” • ETSI (1993) – briefly: • Mandatory royalty disclosure (removed in 1994 policy)

  6. Breach of FRAND – Encumbrance, 2008 Proactive Reactive • ETSI (2008): • Member to notify ETSI of patent transfer and to notify transferee of FRAND obligation • ISO/IEC/ITU (2012): • Addition of Section 1.7 “Assignment or Transfer of Patent Rights” to Annex detailing that licensing commitment are transferred along with patent rights • IEEE (2007): • Addition of a clause stating that the transfer of essential patent rights does not affect licensing terms detailed in original LOA.

  7. Breach of FRAND – Injunctions, 2012 Proactive Reactive • ITU (2013?): • Announced it will release a “compromise” during October meeting • ETSI (2013?): • Scheduled a meeting to discuss options in December • Stay Tuned… • ETSI (1993) – briefly: • 1993 interim policy prohibited injunctions as well as infringement ligation • 1994 interim policy removed both prohibitions

  8. Concluding Remarks • Ample evidence of proactive and timely responses to antitrust issues as they emerge in public debate • Not surprising that newly emerged issues not dealt with yet • These are complex issues that will have different implications for different SSOS • So, no call for aggressive competition agency intervention • Safe Harbor guidelines might be helpful • Need to recognize broad diversity in SSO needs • Industry differences, membership preferences, role and importance of IPR, etc. all differ and all influence appropriate type/level of IPR rules

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