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43-555: IEEE SA has developed standards for over a century, through a program that offers balance, openness, fair procedures , and consensus . Technical experts from all over the world participate in the development of IEEE standards. IEEE SA provides a neutral platform that unites communities for standards development and technological innovation and is independent of any government oversight. IEEE SA develops standards that are consensus-based and has two types of standards development participation models. These are individual and entity. IEEE SA

86-522: A fair, reasonable, and non-discriminatory royalty for third-party use of that technology. Most standard-setting organizations have developed similar patent policies with similar commitments. In 2014, the IEEE SA became the center of a large academic debate among economic and legal scholars when it appointed an ad hoc committee to recommend and subsequently draft amendments to the IEEE patent policy, to which

129-400: A license for the products they do want or requiring licensees to take licenses to certain unwanted or unneeded patents to obtain licenses to other desired patents (bundling); requiring licensees to license their own IP to the licensor for free (free grant backs); and including restrictive conditions on licensees' dealings with competitors (mandatory exclusivity). Reasonable refers mainly to

172-400: A license within the first year of its availability. RAND terms exclude intangible goods which the producer may decide to distribute at no cost and where third parties may make further copies. Take for example a software package that is distributed at no cost and to which the developer wants to add support for a video format which requires a patent licence. If there is a licence which requires

215-793: A member of the ANSI Board since 2001, IEC Vice-President and SMB Chair, and was an ITU-T Rapporteur for over 10 years. Previous Presidents of the IEEE SA include Robert S. Fish (2019-2020), F. Don Wright (2017-2018), Bruce Kraemer (2015-2016, and Karen Bartleson (2013-2014). The 2023 Chair of IEEE SA Standards Board (SASB) is David J. Law. Previous SASB chairs include J.P. Faure, John Kulick, and Gary Hoffman. In March 2020, IEEE Standards Association Open - SA Open, (for open source software) announced Silone Bonewald as its new Executive Director. IEEE SA has two membership options that enable enhanced participation in IEEE SA activities, standards development, and governance. These are: At IEEE SA, participation

258-557: A patent holder clarify its willingness to offer to license its standard-essential patents on FRAND terms. If the patent holder refuses upon request to license a patent that has become essential to a standard, then the standard-setting organization must exclude that technology. When viewed in this light, the FRAND commitment serves to harmonize the private interests of patent holders and the public interests of standard-setting organizations. Many scholars have written about these topics, as well as

301-421: A patent holder has the option to monetize that invention through exclusive use or exclusive licensing. Technology owners might have insufficient incentives to contribute their technologies to a standard-setting organization without the promise of an adequate royalty. The promise of a F/RAND royalty address that problem: the patent holder will typically agree to contribute its technology to the standard, thus forgoing

344-400: A patent) that is, or may become, essential to practice a technical standard . Put differently, a F/RAND commitment is a voluntary agreement between the standard-setting organization and the holder of standard-essential patents . U.S. courts, as well as courts in other jurisdictions, have found that, in appropriate circumstances, the implementer of a standard—that is, a firm or entity that uses

387-493: A rudimentary form of procedural due process (in the form of notice and a hearing). It is contrasted against due process in that it applies to private actors, while due process normally applies only to state actors . Damages for violating the right of fair procedure can be substantial. For example, the State Compensation Insurance Fund was found liable for $ 1,131,000 for arbitrarily denying

430-407: A small medical clinic admission to its preferred provider network. But the right of fair procedure only applies where the conduct of the challenged private entity would destroy the plaintiff's right to practice a lawful trade or profession. Because it is possible (though slightly more difficult) to find gainful employment in the motion picture industry without being the holder of an Academy Award ,

473-440: A standard to render a service or manufacture a product—is an intended third-party beneficiary of the FRAND agreement, and, as such, is entitled to certain rights conferred by that agreement. A standard-setting organization is an industry group that sets common standards for its particular industry to ensure compatibility and interoperability of devices manufactured by different companies. A patent becomes standard-essential when

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516-435: A standard-setting organization sets a standard that adopts the technology that the patent covers. Because a patent, under most countries' legal regimes, grants its owner an exclusive right to exclude others from making, using, selling, or importing the invention, a standard-setting organization generally must obtain permission from the patent holder to include a patented technology in its standard. So, it will often request that

559-500: A tiny per-copy fee, the software project will not be able to avail of the licence. The licence may be called "(F)RAND", but the modalities discriminate against a whole category of intangible goods such as free software and freeware . This form of discrimination can be similarly caused by common licence terms such as only applying to complete implementations of the licensed standard, limiting use to particular fields, or restricting redistribution. The Free Software Foundation suggests

602-685: A variety of other legal and economic issues concerning licensing on F/RAND terms. Standard-setting organizations commonly adopt policies that govern the ownership of patent rights that apply to the standards they adopt (the patent policy). In the United States, the patent holder's agreement to adhere by the patent policy creates a legally binding contract, as the Court of Appeals for the Ninth Circuit ruled in Microsoft v. Motorola . One of

645-519: Is a common law doctrine that arises from a line of groundbreaking decisions of the Supreme Court of California dating back to the 1880s. Certain types of private actors (especially professional associations , unions , hospitals , and insurance companies), due to their overwhelming economic power within certain fields, cannot arbitrarily expel members or employees or deny persons admission for no logical reason; they are obligated to provide

688-480: Is not a body formally authorized by any government, but rather a community. ISO , IEC and ITU are recognized international standards organizations. ISO members are national standards bodies such as American ANSI , German DIN or Japanese JISC . IEC members are so called National Committees, some of which are hosted by national standards bodies. These are not identical to ISO members. Both IEC and ISO develop International Standards that are consensus-based and follow

731-602: Is open to everyone. However, IEEE SA Individual or Corporate Members benefit from enhanced participation privileges. IEEE SA Members enjoy added benefits, including but not limited to the ability to hold working group positions, vote on standards, assume leadership positions in standards working groups and activities, and participate in elections for IEEE SA governing bodies. The IEEE has various related programs in addition to standards development, including Industry Connections, Registries, Conformity Assessment, Alliance Management Services, and IEEE SA Open (for open source). Each year,

774-705: The IEEE Get Program moved to the IEEE Xplore digital library website and standards eligible for the program past that date will only be made available there. On September 1, 2017, the original website was decommissioned and remains, without further updates, to redirect visitors. A member-elected IEEE SA Board of Governors (BOG) directs the activities of the IEEE SA to establish and maintain policy, provide financial oversight and conduct standards-related activities within IEEE technological fields. It also establishes and oversees boards and committees to carry out

817-644: The United States Senate Committee on the Judiciary that the individual terms are defined as follows: Fair relates mainly to the underlying licensing terms. Drawing from anti-trust/ competition law ; fair terms means terms which are not anti-competitive and that would not be considered unlawful if imposed by a dominant firm in their relative market. Examples of terms that would breach this commitment are: requiring licensees to buy licenses for products that they do not want in order to get

860-510: The "one country one vote principle", representing broad industry needs. Their standards cannot be sponsored by individual companies or organizations. The 2021-2022 IEEE SA President is Jim Matthews. Jim has been active in IEEE for over 28 years. He belongs to the IEEE SA, IEEE Communications Society , IEEE Photonics Society , IEEE Power & Energy Society , and the IEEE Technology and Engineering Management Society. Jim has also been

903-551: The Antitrust Division's legal and economic analysis put forth in its business review letter of the revisions, claiming that the Antitrust Division exaggerated the patent policy's procompetitive benefits and wrongly dismissed as unlikely some of its potential anticompetitive costs. The IEEE Get Program makes some standards publicly available for download: This program grants public access to view and download current individual standards at zero charges. On July 11, 2017,

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946-456: The FRAND obligation in their bylaws primarily as a means of enhancing the pro-competitive character of their industry. They are intended to prevent members from engaging in licensing abuse based on the monopolistic advantage generated as a result of having their intellectual property rights (IPR) included in the industry standards. Once an organization is offering a FRAND license they are required to offer that license to anyone (wishing to access

989-652: The IEEE Board of Governors gave final approval in February 2015 and which went into effect in March 2015. The IEEE said that the reason for the amendments was to increase the clarity of the patent policy and the obligations that the patent policy's FRAND commitment imposes on patent holders seeking to enforce their standard-essential patents. One particularly controversial amendment was a provision that prohibited patent holders from seeking injunctions and exclusion orders (from

1032-759: The IEEE SA conducts over 200 standards ballots, a process by which proposed standards are voted upon for technical reliability and soundness. In 2020, IEEE had over 1,200 active standards, with over 650 standards under development. One of the more notable are the IEEE 802 LAN / MAN group of standards, with the widely used computer networking standards for both wired ( Ethernet , aka IEEE 802.3) and wireless ( IEEE 802.11 and IEEE 802.16 ) networks, IEEE 1547 Standard for Interconnecting Distributed Resources with Electric Power Systems, and ISO/IEEE 11073 Standards for Health Informatics. The IEEE standards development process can be broken down into six basic steps: IEEE SA supports

1075-541: The ITC) against infringers of standard-essential patents. The Antitrust Division stated its support for the 2015 patent policy revisions in a business review letter that it issued in January 2015, upon request from the IEEE SA. In the letter, the Antitrust Division said that the provisions would unambiguously produce net benefits for consumers with insignificant anticompetitive implications. At least one commentator has criticized

1118-417: The broader UK doctrine of natural justice applies to both public and private entities. Reasonable and non-discriminatory licensing Reasonable and non-discriminatory ( RAND ) terms, also known as fair, reasonable, and non-discriminatory ( FRAND ) terms, denote a voluntary licensing commitment that standards organizations often request from the owner of an intellectual property right (usually

1161-453: The conduct of the guilds that determine eligibility for the Oscars is not subject to fair procedure. Another limitation, of course, is that although the right of fair procedure (if applicable) clearly requires something slightly less than procedural due process, it does not require the affected party to be afforded more rights than would be available under procedural due process. Thus, when

1204-410: The development, production, and distribution of standards by: Because the IEEE's standards often incorporate technologies that are covered by one or more patent claims, the IEEE SA has developed and added to its governing bylaws a patent policy to ensure both that the implementers using the standard-essential patented technology in their standard-compliant products have access to that technology and that

1247-483: The exclusive use or the exclusive licensing of its technology, in exchange for the assurance that it will receive adequate compensation in reasonable royalties. In 2013, court decisions and scholarly articles cited FRAND commitments 10 times more often than in 2003. While there are no legal precedents to spell out specifically what the actual terms mean, it can be interpreted from the testimony of people like Professor Mark Lemley from Stanford University , in front of

1290-653: The licensing process. The negotiating process for FRAND licenses places requirements on the patent owner and the envisioned patentee. The terms for these negotiations were set in German case law in a case regarding the Orange-Book-Standard , and these terms are often used in licensing negotiations. In 2015, the European Court of Justice interpreted FRAND licensing terms in case Huawei v ZTE (C170/13, ECLI:EU:C:2015:477 significantly diverging from

1333-407: The licensing rates. According to some, a reasonable licensing rate is a rate charged on licenses which would not result in an unreasonable aggregate rate if all licensees were charged a similar rate. According to this view, aggregate rates that would significantly increase the cost to the industry and make the industry uncompetitive are unreasonable. Similarly, a reasonable licensing rate must reward

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1376-583: The licensor with adequate compensation for contributing its essential patents to a standard. Compensation is adequate if it provides the licensor with the incentive to continue investing and contributing to the standard in future time periods. A licensor which has several different licensing packages might be tempted to have both reasonable and unreasonable packages. However having a reasonable "bundled" rate does not excuse having unreasonable licensing rates for smaller unbundled packages. All licensing rates must be reasonable. Non-discriminatory relates to both

1419-500: The most common policies is to require a patent holder that voluntarily agrees to include its patented technology in the standard to license that technology on "reasonable and non-discriminatory terms" (RAND) or on "fair, reasonable, and non-discriminatory terms" (FRAND). The two terms are generally interchangeable; FRAND seems to be preferred in Europe and RAND in the U.S. Some commentators argue that standard-setting organizations include

1462-399: The patent holder should be rewarded accordingly. That is particularly relevant when the value of the patent is not clearly known before the adoption of the standard. Some interpretations of "non-discriminatory" can include time-oriented licensing terms such as an "early bird" license offered by a licensor where terms of a RAND license are better for initial licensees or for licensees who sign

1505-400: The patent holders that voluntarily contribute those technologies to the standard receive adequate compensation for the implementers' use. An important part of the IEEE patent policy is the FRAND commitment, which is a voluntary contractual commitment signifying that a patent holder with patented technology that has been adopted into one of the IEEE's standards will accept as adequate compensation

1548-533: The plaintiff's professional association had clearly given him the benefit of far more procedural protections than he would have been entitled to from any government entity, he had received the benefit of fair procedure and had no cause of action for the mildly adverse action that resulted. In the US, the existence of a separate doctrine of fair procedure for private actors is necessary because due process generally controls only decisions taken by state actors. In contrast,

1591-470: The same regardless of the licensee. This obligation is included in order to maintain a level playing field with respect to existing competitors and to ensure that potential new entrants are free to enter the market on the same basis. The most controversial issue in RAND licensing is whether the "reasonable" license price should include the value contributed by the standard-setting organization's decision to adopt

1634-447: The standard will receive royalties from users of the standard that adequately compensate the patent holder for the incremental value that its technology contributes to the standard. The development of a patented technology typically requires significant investment in research, and contributing that technology to a standard is not the only option by which a patent holder can recoup that investment and thus monetize its invention. For example,

1677-429: The standard), not necessarily only members of the organization. Without such commitment, members could use monopoly power inherent in a standard to impose unfair, unreasonable and discriminatory licensing terms that would damage competition and inflate their own relative position. On the other hand, commentators stress that the FRAND commitment also serves to ensure that the holder of a patent that becomes essential to

1720-415: The standard. A technology is often more valuable after it has been widely adopted than when it is one alternative among many; there is a good argument that a license price that captures that additional value is not "reasonable" because it does not reflect the intrinsic value of the technology being licensed. On the other hand, the adoption of the standard may signal that the adopted technology is valuable, and

1763-514: The term "uniform fee only" (UFO) to reflect that such "(F)RAND" licenses are inherently discriminatory. Related to RAND licenses are RAND-Z (RAND with zero royalty) or RAND-RF (RAND Royalty Free) licensing, in which a company promises to license the technology at no charge, but implementers still have to get the licenser's permission to implement. The licenser may not make money off the deal but can still stop some type of products or require some type of reciprocity or do more subtle things like drag out

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1806-401: The terms and the rates included in licensing agreements. As the name suggests this commitment requires that licensors treat each individual licensee in a similar manner. This does not mean that the rates and payment terms cannot change dependent on the volume and creditworthiness of the licensee. However it does mean that the underlying licensing condition included in a licensing agreement must be

1849-428: The work of the IEEE SA. These boards and committees include: The IEEE SA BOG has eight Strategic Management and Delivery Committees to address strategic focus areas that are necessary and critical for the IEEE SA to achieve long-term organizational objectives. These are: The IEEE SA recognizes outstanding standards development participation through various award categories . Fair procedure Fair procedure

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