Posts Tagged: "standards"

Yesterday, the United States Patent and Trademark Office (USPTO) held a “public listening session” to hear from industry leaders on the topic of standard essential patents. The event was specifically related to the USPTO’s effort to obtain stakeholder input on questions regarding proposed international standards that were presented in a recent Federal Register Notice, as well as strategies identified in the White House’s National Standards Strategy for Critical and Emerging Technologies.

A recent decision out of the Eastern District of Texas granted the plaintiff patent owner summary judgment with respect to the defendants’ counterclaim that the plaintiff breached licensing related obligations owed to the Institute of Electrical and Electronics Engineers (IEEE) by not communicating with the defendants prior to suing for infringement…. While the result is reasonable, the explanations provided by the court raise several questions.

Previously, we wrote about how alleged concerns of “hold-up” and a lack of “transparency”, two non-legal terms without accepted definitions, are being used to advocate for special rules applicable to patents subject to declarations regarding Fair, Reasonable and Non-Discriminatory (FRAND) licensing. These vague concepts are specifically chosen to obfuscate the real issues impacting FRAND licensing and used in an effort to shift traditional burdens of proof, regulate behavior previously found not to violate antitrust / competition law, and rewrite the express language of the commitment made by patent owners to the European Telecommunications Standards Institute (ETSI). The European Commission (EC) is the latest bull to enter the FRAND licensing China shop.

Wi-Fi 6 shares new technologies with LTE and 5G that are subject to heavy patenting. The firms and institutions that currently monetize their standard essential patents (SEPs) against LTE and 5G will likely be looking to increase their royalty income from Wi-Fi 6 and 6e. This could mean that the recent disputes over LTE and 5G standardization participants’ fair, reasonable, and non-discriminatory (FRAND) SEP licensing commitments will spill over into Wi-Fi. Current Wi-Fi litigation trends suggest that this is already afoot, and the recent licensor-friendly changes in the IEEE IPR rules are feared to only fuel this trend.

Artificial Intelligence (AI) is providing enormous productivity and increased value in many applications. But AI is no panacea and is not yet sufficiently well developed to be precise or dependable everywhere. For example, much better AI training data is required to reliably estimate patent essentiality to standards such as 4G and 5G, where AI is being advocated by various experts and has already been adopted by one patent pool. There is also a lot of room for improvement in inferencing.

Some months ago, two courts in Germany granted injunctions against Oppo, one based on a standard essential patent (SEP), and another on a non-SEP related to Wi-Fi. Rather than cave to the demands of Nokia, Oppo has since decided to pull its products out of the German market. Since then, some commentators have claimed that this is another example of so-called “implementers” engaging in hold out. They point to the need for strong injunctive relief in order to force these “unwilling” licensees to the table.

The latest mainstream version of the ubiquitous Wi-Fi standard, known as IEEE 802.11ax or “Wi-Fi 6,” offers substantial technological improvements over traditional Wi-Fi, including Wi-Fi 6’s immediate predecessor—Wi-Fi 5 (IEEE 802.11ac). In particular, Wi-Fi 6 offers faster performance, lower power consumption, and better battery life, all while enabling reduced network congestion and latency. These substantial improvements made over even the immediate predecessor in Wi-Fi technology are made possible by several key technological advances. Wi-Fi 6 has enjoyed good timing as well—its benefits are valuable and necessary improvements as consumers and enterprises increasingly look for high-speed connectivity across a wide and ever broadening array of devices and uses, including the Internet of Things (IoT), augmented/virtual reality (AR/VR), and autonomous vehicles.

A group of 25 experts in intellectual property law sent a letter to Assistant Attorney General (AAG) Jonathan Kanter today in support of a business review letter that the group said, “represented a legally sound and evidence-based approach in applying antitrust law to innovative commercial institutions.” The letter is also a response to an earlier letter sent to Kanter on October 17, 2022, by 28 former government enforcement officials, professors, and public interest advocates that urged the AAG to reconsider the business review letter. The Avanci business review letter was published by the Antitrust Division of the U.S. Department of Justice on July 28, 2020. In the letter, the DOJ said that Avanci’s licensing platform, which plans to license patent claims declared essential to implement 5G in cars, did not harm competition in the industry. Business review letters represent guidance by the DOJ to inform businesses how to best coordinate their practices to ensure they don’t violate antitrust laws.

In the United States, the issue of whether or not one has complied with a licensing-related commitment made to a standards setting organization is often treated as a matter of contract. As we have written about before (here and here), some implementers wish to interpret such commitments so as not to lose entitlement to fair, reasonable and non-discriminatory (FRAND) licenses despite not negotiating in good faith or, as we like to say, to have their FRAND cake and eat it too. In a recently prepared article, we explore how such an interpretation lines up with basic contract law principles, particularly having reference to the language of the European Telecommunications Standards Institute’s (ETSI) Intellectual Property Rights Information Statement and Licensing Declaration [“the ETSI Licensing Declaration”].

During IPWatchdog’s Standards, Patents & Competition Masters 2022 program last week, one panel examined the standard essential patent (SEP) landscape in Europe, which has become decidedly more patent owner friendly than that of the United States in recent years. Beginning with the landmark 2015 decision by the European Court of Justice in Huawei v. ZTE, ([2015] EUECJ C-170/13), European courts have held SEP holders and implementers to account by applying the framework set forth in that ruling, which panelist Inna Dahlin of Valea AB summarized for attendees.

The England and Wales Court of Appeal this morning said that Optis Cellular Technology is entitled to an injunction before a lower court has set fair, reasonable and non-discriminatory (FRAND) terms for a license to Optis’ standard essential patents (SEPs) if Apple refuses to take a court-determined FRAND license. But in a post script to the ruling, Lord Justice Arnold said both Apple’s appeal and Optis’s cross-appeal “illustrate yet again the dysfunctional state of the current system for determining SEP/FRAND disputes” and that the European Telecommunications Standards Institute (ETSI) and other standards development organizaitons (SDOs) should “make legally-enforceable arbitration of such disputes part of their IPR policies” to curb the problem.

On Friday afternoon, the IEEE Standards Association Board of Governors (IEEE SA BOG) announced they had taken action to update the Patent Policy for IEEE standards development. The updates, which will not go into effect until January 1, 2023, appear at first glance to be minimal, but will likely have an extraordinarily positive impact for patent owners.

V2X, or Vehicle-to-Everything, is on the horizon to revolutionize vehicular technology by enabling interaction between vehicles and their environment. The first communication standard for V2X, IEEE 802.11p: WAVE (Wireless Access in Vehicular Environments), was standardized by IEEE (Institute of Electrical and Electronics Engineers) in 2010 for WLAN-based V2X communication. The terms DSRC (Dedicated Short Range Communication), WAVE, 802.11p, WLAN based V2X have been used by experts interchangeably to refer to this standard. Alternatively, 3GPP (3rd Generation Partnership Project) started standardization of C-V2X (Cellular-V2X) with Release 14, which was related to LTE V2X. This was followed by Release 15 with added compatibility of 5G to V2X, Release 16, adding 5G NR V2X, and Release 17 related to enhancement in 5G NR V2X and beyond.

Friday, February 4, marked the deadline for submission of comments on the latest iteration of the Joint Department of Justice (DOJ)-U.S. Patent and Trademark Office (USPTO)-National Institute of Standards and Technology (NIST) Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary FRAND Commitments. The request for comments came on the heels of President Joe Biden’s July 2021 Executive Order on Promoting Competition in the American Economy, which asked the three agencies to review the 2019 statement. In perhaps one of the most surprising submissions, a bipartisan group of former presidential administration officials jointly commented that the new version of the Policy Statement is “disconnected from the realities of SEP licensing,” “unbalanced,” and would “disadvantage the United States on the global stage.”