A single spark can start a Prairie Fire: Implications of the 2015 amendments to IEEE-SAs patent policy

Bharadwaj, Ashish and Singh, Manveen (2018) A single spark can start a Prairie Fire: Implications of the 2015 amendments to IEEE-SAs patent policy. Capital University Law Review, 46 (4). pp. 583-608.

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Interoperability is a vital prerequisite for numerous products, embedded with advanced technologies, to work seamlessly across users. This guaranteed the inevitability of Moore’s law – the principle that has powered the IT revolution in the past 4 decades in making our world digitally connected than ever before. There is both a high demand for multiple inventions within one technology to work together and to have numerous technologies communicate with one another. Standard-setting bodies, such as the Institute of Electrical and Electronic Engineers Standards Association (IEEE-SA), aid in facilitating the interoperability of systems. Published SSO standards outline technical requirements that guarantee interoperability across and within devices that utilize the standardized technologies. With technology constantly evolving, the standards created across an array of bodies in various sectors have undergone a vast change. The aspirations of standards bodies are such that an implementer is able to utilize the standard under expectable licensing terms even though it consists of contributions covered by various patents. These worldwide interoperable innovations require predictable rules to manage Fair, Reasonable, and Non-Discriminatory (FRAND) licensing practices for standard essential patents (SEPs) that cross over global fringes. Standard setting bodies, such as IEEE, ETSI and ITU, facilitate this by helping develop and manage technical standards, which are essentially technical requirements for products embedded with patented inventions. The overarching objective of standards bodies is to ensure availability of standardized technologies to any implementer under licensing terms that vary across standards and standard bodies. For instance, according to ETSI, standards provide safety and reliability in the products and services; support of government policies and legislation for protecting user and business interests; ensure interoperability – among products and services complying with standards; bring business benefits (such as opening up market access, providing economies of scale, encouraging innovation and increasing awareness of technical developments and initiatives), and providing consumers choice among a variety of accessible products based on standards. This paper attempts to explain the details of changes to the patent policy of IEEE-SA, implemented in early 2015, and analyzes the impact of these changes on incentives for innovation and diffusion of innovation in essential technologies that is enabled by a well-functioning SSO. Broadly, the policy changes redefined the prevailing meaning and terms of how licensing of SEPs will be carried out. This includes the obligation set by IEEE that an SEP holder has to accept in the form of a Letter of Assurance (LOA), which is a promise by a patent holder who pledges its essential patents to license them on FRAND terms to any implementer of a standard administered by IEEE. In Section 2 we briefly discuss the importance of standard setting, followed by Section 3, wherein we explain the WiFi standard and the developments that led to the IEEE-SA’s policy change, laying emphasis on issues of royalty rates, injunctive relief and reciprocal licensing. We discuss some implications at large, followed by conclusion in Section 5.

Item Type: Article
Keywords: IEEE | Standard-Setting | Patents | SEP
Subjects: Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Initiative on Research in IP and Competition
Depositing User: Amees Mohammad
Date Deposited: 30 Apr 2022 10:19
Last Modified: 30 Apr 2022 10:19
Official URL: https://www.capitallawreview.org/article/7717-a-si...
URI: https://pure.jgu.edu.in/id/eprint/2767


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