Published: 2/9/15
Publication: Patently-O
“On February 8, the Board of Directors of the Institute of Electrical and Electronics Engineers (IEEE) voted to approve a set of amendments to the organization’s patent policy. The changes largely relate to the commitment of IEEE members to license patents to users of IEEE standards on terms that are ‘fair, reasonable and nondiscriminatory’ (FRAND). As most readers are aware, these commitments have been the subject of recent litigation. IEEE’s Wi-Fi standards alone have played prominent roles in Microsoft v. Motorola, Apple v. Motorola, In re. Innovatio and Ericsson v. D-Link, among others. In most of these cases, there has been sharp disagreement over whether the patent holder complied with its FRAND obligations. To decide these cases, judges and juries have been required to speculate regarding the scope and intent of these obligations, choosing between the divergent views advanced by the litigants and their experts.
Observers of these disputes have long wondered why standards-setting organizations (SSOs) like IEEE have not simply clarified these issues in their patent policies. Doing so would eliminate much of the uncertainty and debate that currently characterizes disputes over FRAND compliance. In fact, in a 2013 article, the chief economists of the U.S. Department of Justice, Federal Trade Commission and European Commission Directorate-General for Competition jointly urged SSOs to clarify issues surrounding FRAND in their patent policies. Yet few SSOs, if any, did so. Until now…”