DOJ should not approve IEEE patent policy weakening WiFi patents

In recent days, several of the most senior policy makers and legal experts in the intellectual property (IP) space have raised alarms about a troubling patent policy decision that is pending at the U.S. Department of Justice (DOJ) and in the Institute of Electrical and Electronics Engineers (IEEE), one of the world’s leading technology standards-setting organizations.

The experts have begun to echo what executives from almost every major wireless research contributor – including Alcatel-Lucent, Ericsson, General Electric, InterDigital, Nokia, and Qualcomm, among others – have been saying for months; that a vote expected in early February in the IEEE Board of Directors could disrupt the balance of power between patent holders and users in the wireless space, with immediate implications for Wi-Fi and eventually for many other areas of technology.

This radical new policy would sharply and artificially reduce the level of protection given to Wi-Fi-related patents. If approved, the change would immediately depress the future development of a technology that is used every day by billions of people worldwide precisely because of the historically competitive, balanced standardization process.

The IEEE has requested – and the DOJ is rumored to be close to issuing – a Business Review Letter (BRL), which will state whether the U.S. Government views the IEEE policy change as consistent with U.S. antitrust laws.  Numerous players have challenged the policy and asked the DOJ to shed more light on its opaque decision-making process, but so far without luck. The IEEE process was also one-sided and arbitrary, in total disregard of its mandate to be open and consensus-based.

The IEEE move is wrong on process and wrong on substance, and a growing number of critics agree.

For example, on January 14, Senator Chris Coons (D-DE), a respected member of the Senate Judiciary Committee, sent a letter to Attorney General Eric Holder, asking the DOJ to slow down the Business Review Letter due to “serious concerns” about the impact on the competitiveness of American innovators and the U.S. economy.

On January 5, the European Commission’s digital policy office issued a letter expressing its concerns about the “significant impact” this change would have on the technology industry.

On November 21, the Board of Directors of the U.S. branch of the IEEE, the IEEE-USA, approved a motion demanding evidence that anyone is being harmed by the organization’s existing patent policy. The American officials also warned their global counterparts that the non-consensus-based process that produced the new policy exposes IEEE to legal actions under U.S. antitrust laws.

Adam Mossoff, a Professor of Law at George Mason University and Co-Chairman of the Intellectual Property Committee of the IEEE-USA, noted in a recent op-ed that there is “no evidence acquired by proper scientific norms of empirical study that technology is being ‘held up’ or that consumers are being ‘harmed’ as a result of [existing] patents on technological standards. The explosive technological innovation, diversity in products, and incredible low prices in smartphones and tablets belie any assertions to the contrary.”

In other words, there is no reason for the DOJ to interfere in a market that is highly competitive and pro-consumer under current policies.

The DOJ and IEEE decisions are also being watched closely by China and other actors that want to disrupt the long-established norms of U.S. and European IP policy in a blatant effort to boost the fortunes of their less innovative industries. On January 16, Policy and Regulatory Report reported that a think tank linked to China’s Ministry of Information and Technology is developing a draft intellectual property “policy template” that includes the same policy change contemplated by the IEEE. Sadly, the article reports that some American companies with deep investments in China are pushing this anti-patents policy in both arenas.

The time is now for the DOJ to open up its policy deliberations, take heed of the concerns being raised by America’s most innovative companies, and refuse to approve the new IEEE policy. If the DOJ ignores this advice and gives its consent anyway, then it will be time for the U.S. Congress to step in and stop this threat to American-led innovation.