[governance] The US Department of Justice and USPTO call for compulsory licenses on thousands of "standards-essential" patents

Tue Feb 26 21:42:54 EST 2013

I am sorry but RFCs are consensus based standards. Even if they 
conflict with or are alternate implementations of patents it has little 
or no impact to actual governance

--srs (htc one x)

On 27 February 2013 7:54:35 AM "Salanieta T. Tamanikaiwaimaro" 
<salanieta.tamanikaiwaimaro at gmail.com> wrote:
> Dear Riaz,
>
> This is extremely interesting in terms of impact on Internet Governance.
> The developments are relevant due to the conflicts between IETF RFCs and
> Patents as was the case last year with a certain patent application.
>
> Not to mention, that the US Department of Commerce oversees both the USPTO
> and by extension- ICANN through the IANA.
>
> From face value - compulsory licenses for standards means to my mind at
> least the staking of authority and shift in standards regulations. On a
> prima facie level, it is also a shift from ITU-T to the USPTO and the ping
> pong between forum shoopping between WTO and ITU-T has begun.
>
> Interesting times ahead. Thanks for picking this up and monitoring this
> space.
>
> Take care,
>
> On Wed, Feb 27, 2013 at 4:20 AM, Riaz K Tayob <riaz.tayob at gmail.com> wrote:
>
> > Should the government intervene in this market?
> >
> > http://keionline.org/node/1663
> >
> > The US Department of Justice and USPTO call for compulsory licenses on
> > thousands of "standards-essential" patents
> >
> > 26. February 2013
> >
> > On January 8, 2013, the US Department of Justice (DOJ) and the U.S.
> > Patent and Trademark Office (PTO) issued a joint statement on
> > "remedies for standards-essential patents subject to voluntary F/RAND
> > commitments. (Copy of statement here). The statement was directed to
> > the United States International Trade Commission (ITC) which
> > administers Section 337 of the Tariff Act of 1930 (19 USC 1337. Unfair
> > practices in import trade, see:
> > 
> http://www.usitc.gov/**intellectual_property/<http://www.usitc.gov/intellectual_property/>),
> > and it has the practical
> > effect of introducing a policy of compulsory licenses for thousands of
> > standards relevant patents.
> >
> > DOJ and PTO are responding to growing criticism of the patent system
> > as it relates to mobile computing devices and other technologies where
> > product developers find it difficult if not impossible to obtain
> > voluntary licenses on reasonable terms to the large number of patents
> > covering various aspects of the product. The decision is important for
> > four reasons.
> >
> > (1) A very large number of patents are impacted by the policy,
> > arguable making it the largest compulsory license decision in history.
> >
> > (2) DOJ and PTO invoked the sections of U.S. law that allow
> > infringement of a patent when the ITC considers the "effect of such
> > exclusion upon the public health and welfare, competitive conditions
> > in the United States economy, the production of like or directly
> > competitive articles in the United States, and United States
> > consumers."
> >
> > (3) High patent royalties are seen has a potential harm to consumers.
> >
> > (4) The policy operates outside of Article 31 of the TRIPS, instead
> > relying upon the considerable flexibility under Article 44 of the
> > TRIPS Agreement, which allows WTO members to limit the availability of
> > injunctions when royalty payments or other compensation or
> > remuneration is available to patent holders.
> >
> > The policy now being implemented at the ITC is to make it very
> > difficult for patent owners to obtain injunctions to stop infringement
> > of valid patents in cases where the patent is subject to a policy of
> > licensing on reasonable and non-discriminatory terms. And, when
> > parties cannot reach an agreement on license terms, the ITC or the
> > courts may step in and set royalties. By making it much more difficult
> > for a patent holder to obtain an injunction, the bargaining power of
> > the patent holder is significantly diminished, which is one objective
> > of the new policy.
> > The new DOJ/PTO statement is a welcome reform of a patent system that
> > has increasingly created a drag on innovation. It may also make it
> > more difficult for the US government to block compulsory licensing
> > activity in other countries.
> >
> > The DOJ/PTO statement is attached below. A few quotes from the text follow:
> >
> > --------begin quote
> > . . . when a standard incorporates patented technology owned by a
> > participant in the standards-setting process, and the standard becomes
> > established, it may be prohibitively difficult and expensive to switch
> > to a different technology within the established standard or to a
> > different standard entirely. As a result, the owner of that patented
> > technology may gain market power and potentially take advantage of it
> > by engaging in patent hold-up, which entails asserting the patent to
> > exclude a competitor from a market or obtain a higher price for its
> > use than would have been possible before the standard was set, when
> > alternative technologies could have been chosen. This type of patent
> > hold-up can cause other problems as well. For example, it may induce
> > prospective implementers to postpone or avoid making commitments to a
> > standardized technology or to make inefficient investments in
> > developing and implementing a standard in an effort to protect
> > themselves. Consumers of products implementing the standard could also
> > be harmed to the extent that the hold-up generates unwarranted higher
> > royalties and those royalties are passed on to consumers in the form
> > of higher prices. . .
> >
> > The USITC has a mandate to consider the “effect of such exclusion upon
> > the public health and welfare, competitive conditions in the United
> > States economy, the production of like or directly competitive
> > articles in the United States, and United States consumers.” [19] As
> > the USITC has observed, these public interest factors ‘“are not meant
> > to be given mere lip service,” but rather “‘public health and welfare
> > and the assurance of competitive conditions in the United States
> > economy must be the overriding considerations in the administration of
> > this statute.’” . . .
> >
> > The USITC may conclude, after applying its public interest factors,
> > that exclusion orders are inappropriate in the circumstances described
> > in more detail above. Alternatively, it may be appropriate for the
> > USITC, as it has done for other reasons in the past, to delay the
> > effective date of an exclusion order for a limited period of time to
> > provide parties the opportunity to conclude a F/RAND license. Finally,
> > determinations on the appropriate remedy in cases involving
> > F/RANDencumbered, standards-essential patents should be made against
> > the backdrop of promoting both appropriate compensation to patent
> > holders and strong incentives for innovators to participate in
> > standards-setting activities.
> > -------end quote
> >
> >
> > The full text of the policy statement
> >
> > UNITED STATES DEPARTMENT OF JUSTICE AND UNITED STATES PATENT & TRADEMARK
> > OFFICE
> > POLICY STATEMENT ON REMEDIES FOR STANDARDS-ESSENTIAL PATENTS SUBJECT
> > TO VOLUNTARY F/RAND COMMITMENTS
> > January 8, 2013
> >
> >    [snip]
> >
> >
> >
> >
> >
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>
> --
> Salanieta Tamanikaiwaimaro aka Sala
> P.O. Box 17862
> Suva
> Fiji
>
> Twitter: @SalanietaT
> Skype:Salanieta.Tamanikaiwaimaro
> Tel: +679 3544828
> Fiji Cell: +679 998 2851
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