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

GTW gtw at gtwassociates.com
Wed Feb 27 09:17:00 EST 2013 

Congratulations and thanks  to Jamie for bringing the matter of licensing 
patents essential to practice a standard to the attention of this list. This 
topic indeed has global implications.   However IMO it is not at all  clear 
what are  proper and helpful  roles of government intervention to address 
problems that  arise.   I  prefer  private sector market based solutions 
over  government interventions with their attendant many  unforeseen  and 
unanticipated consequences.

Fortunately IMO  it is  not true that the DOJ and USPTO statement 
http://www.justice.gov/atr/public/guidelines/290994.pdf   calls for 
compulsory licenses on thousands of "standards-essential" patents as the 
title of this email thread contends.  The document's title more closely 
describes its purpose and content, "POLICY STATEMENT ON REMEDIES FOR 
STANDARDS-ESSENTIAL PATENTS SUBJECT TO VOLUNTARY F/RAND COMMITMENTS"   IMO 
one of its purposes is to help courts and the US International Trade 
Commission understand what are the nuances of issues involving standards and 
patents in current litigation and requests for ITC exclusion orders.  It 
also nudges standards developing organizations around the world to consider 
how their polices and procedures  address potential problems that may arise 
with their standards.

Recently the US Federal Trade Commission FTC also proposed some actions to 
address problems it perceived in this space.  I disagreed with aspects of 
both of these proposals. I disagreed in the first case 
http://www.ftc.gov/os/comments/rboschgmbh/00013-85359.pdf   for example when 
FTC  proposed to require royalty free licensing  of some patents FTC 
themselves agreed were not essential to practice a standard. I disagreed  in 
the second case for example 
http://ftc.gov/os/comments/motorolagoogle/563708-00013-85543.pdf   when FTC 
proposed to require many steps before a  patent holder could begin to  seek 
legal  remedies in matters involving infringement of patents

It is true there are global  problems and issues that arise related to 
matter of licensing patents essential to practice a standard.  These 
problems and issues deserve global examination and discussion.  IMO 
potential solutions to these issues need to balance  encouragement for the 
many positive contributions and role of Intellectual Property to global 
standard setting with the needs of potential license holders to practice 
global standards on a reasonable basis.   IMO government intervention 
mandating solutions risks upsetting that balance

George T. Willingmyre, P.E.
President GTW Associates

-----Original Message----- 
From: Suresh Ramasubramanian
Sent: Wednesday, February 27, 2013 4:03 AM
To: Jamie Love
Cc: governance at lists.igcaucus.org ; Riaz K Tayob
Subject: Re: [governance] The US Department of Justice and USPTO call for 
compulsory licenses on thousands of "standards-essential" patents

Important - yes.

Related to internet governance in any shape or form - no.

Which is why I must repeat my plea that we retain focus.

--srs (iPad)

On 27-Feb-2013, at 14:13, Jamie Love <james.love at keionline.org> wrote:

> I think the DOJ/PTO decision is pretty important, because it (1)
> recognizes the problem that thousands of exclusive rights presents to
> developers of new services and products, and (2) is directed at
> standards, which are at the core of the Internet's operation.
> Exclusive rights have become an outdated and much abused paradigm for
> patents and copyrights in a wide range of contexts, and governments
> have been slow to fashion new paradigms.
>
>
> On Wed, Feb 27, 2013 at 10:37 AM, Suresh Ramasubramanian
> <suresh at hserus.net> wrote:
>> "exceptionalism", "rentiers" - the point would be made much better 
>> without such stale and overused ideological catchphrases.
>>
>> Anyway - there is plenty of recorded government intervention in the 
>> patent system. Worldwide, and in the United States.
>>
>> --srs (iPad)
>>
>> On 27-Feb-2013, at 13:53, Riaz K Tayob <riaz.tayob at gmail.com> wrote:
>>
>>> Conceptions of the ecosystems of Internet Governance differ, 
>>> particularly as relates to legitimacy or exceptionalism issues.
>>>
>>> At a similar level of abstraction, what this shows is that national 
>>> choices can have extra territorial effect, namely the policy of low 
>>> quality patents in the US and the relegation of disputes to the legal 
>>> system.
>>>
>>> In addition, there is the local US tension between the old intel prop 
>>> rentiers in the Pharma (20 year patent) and recording industries (70 y 
>>> plus copyright) vs the more dynamic and fast moving ICT industry; and 
>>> perhaps this is an indication that the US has decided to take action on 
>>> these matters, in order to reap what it has sown. It does indicate that 
>>> even the sacred cow of the patent system is not beyond the bounds of 
>>> intervention, which at this level of abstraction should attract 
>>> critiques of governmental intervention *which for some is presumptively 
>>> bad.
>>>
>>>
>>>
>>>
>>>
>>>
>>> On 2013/02/27 08:05 AM, Lee W McKnight wrote:
>>>> Actually...one might geopolitically view the USPTO policy change as 
>>>> primarily motivated at forcing a truce among device 
>>>> manufacturers/patent holders.
>>>
>>>
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>
>
> -- 
> James Love.  Knowledge Ecology International
> http://www.keionline.org, +1.202.332.2670, US Mobile: +1.202.361.3040,
> Geneva Mobile: +41.76.413.6584, efax: +1.888.245.3140.
> twitter.com/jamie_love







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