Rationality and pragmatism have prevailed, and unity--within the universe of standard-setting organizations--has been restored. The IEEE Standards Association Board of Governors (IEEE SA BOG) just announced an update to its patent policy, which will formally enter into force on New Year's Day.
These are the key take-aways:
The highly controversial elements the IEEE added to that patent policy in 2015 and which favored hold-out by unwilling licensees among implementers of WiFi (IEEE 802.11) and other IEEE standards have effectively been stricken (or, at a minimum, thoroughly diluted to the extent they no longer mean anything). Those issues include access to injunctive relief, the royalty base (proponents of the Smallest Salable Patent-Practicing Unit (SSPPU) often pointed to the IEEE policy), and what type of behavior ina licensing negotiation constitutes (un)willingness.
Simply put, the IEEE's patent policy is now much more like ETSI's: right holders are not restricted (in terms of the royalties or remedies they demand) beyond the applicable case law.
Ten years ago, I reported on an IEEE amicus brief that said standardization bodies should take "no direct role in patent enforcement." With today's amendments to the 2015 policy--which essentially repeal the 2015 amendments--IEEE is back to where it was before.
IEEE's announcement also resolves a conflict that had arisen because of some major patent holders ( including, but not necessarily limited to, Ericsson, GE, Huawei (notably, a large-scale WiFi implementer as well), InterDigital, LG, Nokia, Orange, Panasonic, and Qualcomm (in alphabetical order)) participating in the standard-setting process under the old policy, declining to provide letters of assurance (LOAs) under the 2015 policy: in case of doubt, the least restrictive (on patent holders) policy now applies.
That LOA divergence even jeopardized the ANSI certification of newly developed IEEE standards as I mentioned in the post I just linked to. The revised policy brings IEEE back into the ANSI fold as far as I can see. That's obviously up to ANSI to decide--I'm just voicing my own opinion.
At the same time, IEEE has--again, just in my opinion--avoided running into problems with the International Organization for Standardization (ISO) (see this LinkedIn article by NY-based attorney David Cohen).
In my ">May 2022 post on the IEEE situation I mentioned that Apple and some of its allies were lobbying hard to prevent from happening what has now been formally announced. Let's hope that Apple recognizes this defeat and doesn't resort to ever more astroturfing, which is simply annoying in the SEP context and adds insult to injury with respect to App Store issues.
I applaud IEEE for drawing the necessary conclusions from the fact that no other major standard-setting body (I don't even know about a minor one, but I can't claim to know them all) ever followed suit and modeled its own patent policy after the 2015 IEEE policy.
There is a parallel here between what IEEE has decided to do and what the Biden Administration did a few months ago, i.e., that the DOJ, USPTO, and NIST decided neither to adopt a new SEP policy statement nor to reinstate the Obama-era one. No more outlier positions. Just neutrality--and deference to the courts of law.
This is a major success not only for SEP holders interested in fair compensation and reasonably strong enforcement, but also for former Antitrust Assistant Attorney General Makan Delrahim, who put pressure on IEEE. He's now in private practice (Latham & Watkins, a firm that oddly counts Apple among its most important clients, if it isn't even Latham's most important client), but his approach to the old IEEE policy has been vindicated today. I didn't always agree with him to put it mildly, but he does deserve credit. I previously mentioned a significant, equally SEP-related, post-term achievement of his last year (the Fifth Circuit's dismissal of HTC's appeal against Ericsson).
