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The Department of Justice announced today that it will not oppose a proposal by the Institute
of Electrical and Electronics Engineers Inc. (IEEE) to implement a policy on the disclosure and licensing of patents in IEEE's standards-setting process. The policy will allow patent holders to commit publicly to specific restrictions on their future licensing terms and conditions for
the use of patents that are essential to IEEE standards. The Department said that the proposed policy may enable IEEE to make better informed decisions when formulating standards that will benefit consumers.
The Department's position was stated in a business review letter from
Thomas O. Barnett, Assistant Attorney General for the Department's
Antitrust Division, to counsel for IEEE and its standards association,
IEEE-SA. IEEE is a non-profit association for technology professionals with
diverse interests. IEEE-SA, IEEE's standards development organization
(SDO), develops and issues standards used in industries such as information
technology, power and energy, instrumentation and measurement, mobile and
stationary batteries, nanotechnology, organic electronics,
telecommunications, and transportation safety.
IEEE requested a business review letter from the Antitrust Division
expressing its enforcement intentions regarding a proposed patent policy
that will give holders of patents essential to IEEE standards the option of
publicly committing to the most restrictive licensing terms they would
offer. Under the policy, the patent holder could also choose a number of
other options. It could: choose not to provide any licensing information;
state that it does not believe its patents are essential to the IEEE
standard; state that it will not assert its essential patent claims against
implementors of the standard; or commit to license its essential patent
claims on reasonable and nondiscriminatory terms. The policy also clarifies
that these types of assurances about future patent licenses are
irrevocable, and that they are binding on affiliates of the patent holder.
IEEE-SA implementation of the patent policy should permit IEEE
"standard-setters" to access the relative costs of competing technologies.
In October 2006, the Department issued a business review letter to
another standard-setting organization, VMEbus International Trade
Association (VITA), in which the Department concluded that mandatory
disclosure of a patent holder's most restrictive licensing terms before a
standard is set can preserve "the benefits of competition between
alternative technologies that exist in the standard-setting process." In
the Department's letter to IEEE, Barnett said that IEEE's patent policy
"could generate similar benefits as patent holders may compete to offer the
most attractive combination of technology and licensing terms." In
addition, the increased information that may become available should
improve the decision-making of IEEE standard- setters.
"The requests from VITA and IEEE show that individual SDOs are working
to find patent disclosure and licensing policies that will improve the
efficiency of their standard-setting activities," Barnett said. "The
antitrust laws permit reasonable efforts to enhance the effectiveness of
such beneficial collaborative activities."
Under the Department's business review procedure, an organization may
submit a proposed action to the Antitrust Division and receive a statement
as to whether the Division will challenge the action under the antitrust
A file containing the business review request and the Department's
response may be examined in the Antitrust Documents Group of the Antitrust
Division, U.S. Department of Justice, Suite 215, Liberty Place, 325 7th
Street NW, Washington, DC 20530. After a 30-day waiting period, the
documents supporting the business review will be added to the file, unless
a basis for their exclusion for reasons of confidentiality has been
established under paragraph 10(c) of the Business Review Procedure, 28
C.F.R. section 50.6.
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