I'm not defending Qualcomm - I don't know the facts of this
matter and have no opinion on whether I would defend them if I
did. However... (inline below)....
--On Wednesday, June 15, 2011 17:07 -0400 Alan Clark
<alan.d.clark@telchemy.com> wrote:
> Pete
>
> Many large companies have substantial patent portfolios and
> could avoid the disclosure requirements of standards
> organizations if they could claim that the participants in
> standards activities were not personally aware of patents that
> may affect standards under development. IMHO if this were
> allowed to happen then patent disclosure requirements become
> completely ineffective.
>...
Some others have done exactly that before. The rule that you
prefer is certainly a possible one (but see below). However,
the IETF's various IPR WGs considered the issue very carefully
and arrived at the "personal knowledge" requirement, so, in
commenting about personal knowledge, Pete is merely reflecting
the way our rules are written.
IANAL, but I understand that there is some case law in which
judges have taken a dim view of companies organizing themselves
in ways that seem to have the sole purposes of evading the
requirements of SDOs or of surfacing submarine patents at times
that give them unreasonable or unfair advantages.
> In my opinion - any company participating in any standards
> activity should either:
>
> (i) Establish an internal process by which they monitor the
> standards activities in which they participate and constantly
> review their patent database for potential applicability
> (relatively easy given that everything is electronic). If
> they find a matching patent or application related to an
> in-process standards activity they should disclose it and
> state the applicable licensing terms - if the standards
> activity has already completed then they should waive their
> right to enforce the patent with reference to the standard.
> (ii) Make a blanket statement to the standards body that they
> were willing to make licenses available royalty-free with the
> condition of reciprocity. This avoids the need to track
> anything and preserves some ability to use patents defensively.
Unfortunately, there is a third possibility, one that companies
take when they perceive the requirements of a particular SDO or
consortium are too expensive or otherwise burdensome: they drop
out and prohibit their employees and others over whom they have
control from participating. While I think many of us would
prefer one of the two choices you outline, the possibility of
the third should continue to make us cautious about too-sweeping
rules.
john
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