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Exam Number : 920-533
Exam Name : Carrier VoIP - Communication Server 2000 - Compact
Vendor Name : Nortel
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Nortel VoIP Practice Questions
“A assertion to ETSI is not […] an allegation of essentiality however somewhat a dedication to make licenses accessible to the declared patents on FRAND phrases and prerequisites.”
A traumatic fashion has recently emerged whereby an alleged lack of transparency associated with the eu Telecommunications standards Institute (ETSI) intellectual property rights database (IPR Database) is getting used in help of antitrust allegations and to suggest radical adjustments to the fair, inexpensive and non-discriminatory (FRAND) licensing framework for 3G, 4G and 5G wireless expertise. but is there definitely this kind of transparency issue or is this yet an additional try and tilt stability of vigor in desire of implementers and excuse hang-out?
The role of ETSI’s IPR policy and IPR Database
earlier than delving into these recent developments, consider first what ETSI intended to achieve with its highbrow property rights policy (IPR policy) and IPR Database. ETSI’s fundamental subject was making certain that FRAND licenses could be accessible to implementers for any patents simple to practising a typical, such as the requisites developed through the 3GPP for 3G, 4G and 5G wireless communications. ETSI executed this goal via its IPR policy which become designed to identify potentially primary patents in order that licensing commitments may well be secured. These licensing commitments are then uploaded to ETSI’s IPR Database to facilitate implementers realizing if any patent delivered to their attention is purchasable for FRAND licensing.
The IPR Database doesn't, however, point out if a license is required for any given patent. it's to say, ETSI’s IPR Database is not, and become no longer intended to be, a real time, up so far repository of simplest primary, legitimate and unexpired patents obligatory to practice the standards. See, for example, the “Disclaimer” on ETSI’s IPR Database (emphasis introduced):
NO REPRESENTATIONS AND/OR WARRANTIES (whether express OR IMPLIED) ARE MADE by using THE ETSI SECRETARIAT involving ANY OF THE highbrow PROPERTY RIGHTS CONTAINED within the present IPR online DATABASE, together with however not confined TO THE ACCURACY, COMPLETENESS, VALIDITY, APPLICABILITY OR RELEVANCE OF THE guidance OR whether OR not SUCH RIGHTS ARE fundamental AS PER THE DEFINITION OF THE ETSI IPR policy.
also noteworthy is that ETSI’s IPR coverage encourages so referred to as “over declaration” by using in the hunt for disclosure of patents that “might possibly be basic”, given it is in ETSI’s interest that greater patents be discipline to FRAND licensing commitments than less. additional, ETSI encourages disclosure of probably essential patents early in the standardization method which complicates essentiality determinations given the necessities text and patents claims are sometimes in flux at that aspect.
Lenovo v. InterDigital
however the targets underlying ETSI’s IPR policy and IPR Database Lenovo asserts, in a recently filed complaint, that InterDigital Communications (IDC) has engaged in anticompetitive conduct, and breached its dedication to ETSI for, amongst different explanations, overstuffing the ETSI Database (emphasis introduced):
IDC compounded the deceptive nature of its IPR Declarations by declaring thousands of its patents as basic to the mobile requisites devoid of regard as to whether these patents are truly—or moderately may additionally turn into—simple, thereby making a thicket of alleged SEPs supposed to raise the charges and complexity, as a pragmatic count, for expertise licensees to check entirely these claims of essentiality. In doing so, IDC tilts negotiations improperly in its prefer through a enormous and disproportionate imposition of transaction fees upon implementers of the cellular necessities that seek to license cellular SEPs on FRAND terms.
A statement to ETSI is not, however, an allegation or affirmation of essentiality however quite a commitment to make licenses purchasable to the declared patents on FRAND phrases and prerequisites to the extent they're or turn into, and remain, elementary.
Lenovo’s grievance tacitly acknowledges that now not all patents for which licensing commitments had been made are standard by noting InterDigital’s position regarding its share of patents “more likely to be fundamental”:
IDC claims to hang a portfolio of over 34,000 patents and patent purposes worldwide. on account of its manipulation of the standard-setting manner, its misleading FRAND commitments, and its over-declaration of patents to ETSI, IDC claims that hundreds of its patents are standard to the cellular requirements, although it is cautious no longer to determine all such patents with particularity. as an alternative, IDC purports to manage 7-10% of the patents “probably” to be primary to the 3G UMTS ordinary and pretty much 10% of the patents “seemingly” to be simple to the 4G LTE general.
For if InterDigital is saying it controls 7-10% of the patents that are prone to be simple according to reports by way of third-birthday party analysts, that is going to be far lower than the total variety of InterDigital patents within the ETSI Database in response to average costs of “over declaration” (which is a misnomer given the aforementioned goal of ETSI’s IPR coverage and IPR Database). additional, Lenovo’s acknowledgement of such third-party experiences analyzing essentiality undermines its place that reviewing ETSI’s IPR Database is necessary to verify relative shares of SEP ownership.
apparently, and giving very little credit to the intelligence of arbitrators, Lenovo raises another straw man asserting that “…IDC’s efforts to coerce Plaintiffs into arbitration is in simple terms a different ability wherein is seeks to take capabilities of secrecy and its inflated counts of declared SEPs to extract non-FRAND royalties…”. however besides the fact that one have been to count on, arguendo, that IDC would are trying to equate the variety of patents for which declarations have been submitted to ETSI to its share of likely SEPs, which it doesn’t appear to be doing, that façade would cease to be helpful the moment Lenovo mentioned that inclusion in ETSI’s IPR Database does not mean the patents are, in reality, essential.
even though most effective outlined as soon as in its criticism, Lenovo frames such concerns as being a be counted of “transparency”, despite that time period not having an permitted criminal meaning or figuring out in the trade:
Transparency in licensing of SEPs would, in contrast, allow potential licensees to investigate extra quite simply the price of IDC’s portfolio, as well as expose IDC’s non-compliance with its FRAND commitments and its pattern and observe of violating its FRAND licensing duties.
however is that this basically a matter of transparency given InterDigital’s patents, the licensing declarations submitted to ETSI (which assist slender down those InterDigital patents that may be basic), the requirements, and prior paintings are all publicly accessible? With admire to the licensing declarations, be aware that not like the situation with ETSI, the place patent numbers and requirements part numbers are offered, “blanket” declarations are common in the IEEE and ITU, with patent house owners basically declaring that, to the extent they have got any patents that may well be primary, they're organized to license on RAND or FRAND because the case may be.
to use Lenovo’s own words, this sounds more like an argument of who should still undergo the “transaction fees” of selecting which patents should be licensed and what the acceptable FRAND rates may still be. however what is incorrect with Lenovo having to do its personal analysis and taking its chances on concern of non-compliance with FRAND in courtroom if no longer agreeing with InterDitigtal’s evaluation, as compared to making InterDigital reveal its hand in pre-litigation negotiations with none dedication from Lenovo to attain FRAND licenses? Taking Lenovo’s proposed approach to the logical subsequent step, is InterDigital also liable for inspecting third birthday party patents given assessing its compliance with FRAND requires consideration of the entire universe of primary patents?
The ‘SEPs professional community’
An “knowledgeable neighborhood” installation via the eu commission “to deliver the commission with economic, legal and technical expertise and to support the fee to inform coverage measures that it will probably take to make certain a balanced framework for easy, productive and useful licensing of SEPs”, additionally mentioned considerations with transparency in its January “Contribution to the talk on SEPs” (“Contribution”). especially, the Contribution states that “there's an absence of transparency as to the ownership and number of authentic SEPs overlaying an adopted normal, which makes it elaborate for implementers to determine what SEP licences they want for his or her regular-compliant products or capabilities” and, in accordance with the consultants, “offering improved transparency on the SEP landscape could be a good option to both SEP holders and implementers as it might also facilitate smoother SEP licensing negotiations and cut back SEP litigation” (emphasis delivered). The Contribution notes, however, that “there's at present no clear proof” of an absence of transparency expanding licensing transaction costs and making FRAND licensing much less effective.
the place the experts in reality go off the rails is with respect to ETSI’s IPR Database. as an example, the Contribution notes that while ETSI’s declarations are greater targeted than these used by using different ordinary construction businesses, they “aren't continuously up to date to mirror alterations within the SEP landscape” to replicate that “[p]atent applications may well be rejected, patents may well be invalidated or expire or lose their basic personality, as specifications are authorized, supplemented or amended…” just a little noticeably, the specialists make this commentary despite acknowledging the goal of the declaration technique changed into “to make sure that all patents that are or could become elementary to a common are available for licensing…” and that such declarations were “no longer intended to facilitate SEP licensing…”.
however the lack of evidence regarding the impacts of transparency concerns, and the goal behind ETSI’s IPR policy and IPR Database, the Contribution goes on to make several proposals the tremendous majority of which region further burdens and obligations on patent homeowners. as an instance, the Contribution proposes requiring patent owners to obtain third birthday celebration essentiality assessments, to submit additional information to ETSI (e.g. the consequences of essentiality assessments), to update counsel offered to ETSI, to accelerate prosecution for declared patents, and to behavior prior artwork searches amongst different issues. atmosphere apart the myriad problems such proposals would create, many of which might be touched on in the Contribution itself, the greatest problem is the underlying and unsupported assumption that the FRAND licensing regime is meant to provide implementers with full transparency, without any obligation to reciprocate.
The big Imbalance
regarding whom, as between patent owners and implementers, should shoulder the burden of assessing the essentiality and cost of requirements connected patents (i.e. “the transaction expenses”), consider the fact that patent house owners have already made significant investments into innovating and patenting these innovations, whereas implementer were free to commercialize, and profit from, the know-how with none obligation to enter into FRAND licenses.
also, worth questioning is the miraculous nature of the narrative that significant implementers one way or the other are losing sleep over now not being in a position to determine the entire patents they want they might license however cannot, as a result of the state of ETSI’s IPR Database. consider, for example, that many tech companies have an implicit (if no longer express) inside coverage combating their personnel from taking a look at, or commenting on, third-birthday celebration patents in an effort to cut back the risk of willful infringement. greater useful is the view of the european “knowledgeable community”, that patent house owners typically have to make the primary movement:
the shortcoming of aspect in a large of majority of SDO declarations makes it problematic if no longer not possible for an implementer the usage of the average to verify the scope of licenses essential to avoid infringing applicable SEPs. as an alternative, implementers ought to do their due diligence on those questions involving the probably vital SEPs portfolios in my view, youngsters SEP holders are dealing with the same questions. hence, many implementers may also select no longer to proactively examine the remember and somewhat watch for SEP holders to inform them about their SEP portfolio and provide a note of infringement.
So, with the viable exception of business giants like InterDigital, who can greater closely depend on their licensing background, sheer portfolio measurement, and third-birthday party essentiality analyses to assist their positions devoid of choosing specific patents, implementers are well privy to those patents outlined in ETSI’s IPR Database which are believed to be standard, specifically those they are being approached to license.
finally, accept as true with the rules of civil system in discovery jurisdictions as an analog which also are searching for to enhance transparency. Two first-rate distinctions from what is being proposed by the ecu “skilled neighborhood” for FRAND licensing are: (1) the duty to disclose primary suggestions is reciprocal; and (2) a outcomes is guaranteed. To the extent any initiatives are undertaken to boost transparency, equity dictates that these tasks should be reciprocal and designed to facilitate attaining FRAND licenses because of this.
picture supply: Deposit PhotosAuthor: iqonceptImage identification: 39072457
Curtis Dodd is Chief highbrow Property Officer (CIPO) at Harfang IP. he is a veteran of patent monetization, enforcement and portfolio management in the telecommunications and consumer electronics space with approximately twenty years of trade event. Amongst different roles, Mr. Dodd turned into assistance for Nortel Networks and lead the management of its 4G wireless portfolio (twice being named as an inventor). This portfolio offered to a consortium led through Apple and Ericsson in a multi-billion-dollar transaction in 2011. Mr. Dodd additionally labored for Wi-LAN as vice president, Patents and guidance, throughout which era Wi-LAN generated lots of of hundreds of thousands of greenbacks in licensing earnings from its core US Wi-Fi and CDMA patents and enormously grew its instant portfolio through acquisition. In 2011, Mr. Dodd joined Acacia and, as a Senior vp and Licensing govt, helped Acacia and its partners, together with key trade avid gamers Nokia and Samsung, generate huge licensing income, and helped Acacia tremendously boost its wireless place via a few huge acquisitions. Most lately, as a Senior Licensing expert for Fitch Even, Mr. Dodd assisted Longhorn IP in efficaciously monetizing 3G and 4G LTE standards elementary patents formerly owned via ZTE and ASUSTeK.
For more assistance or to contact Mr. Dodd, please talk over with his enterprise Profile page.
Chris Dubuc is the Founder and President of Harfang IP. He in the past established Longhorn IP, an emerging chief on this planet of patent licensing. just before Longhorn IP, Mr. Dubuc became Senior vp at Acacia analysis community. previous to that, Mr. Dubuc was vp of Licensing applied sciences at WiLAN. prior to now, Mr. Dubuc held a range of positions in engineering, revenue and product management with several organizations developing and advertising products in the enviornment of instant applied sciences, together with Nortel Networks, GE Fanuc and the Communications analysis middle. Mr. Dubuc holds a couple of patents involving wireless know-how and has published numerous papers and articles within the area of wireless know-how. Mr. Dubuc is a Senior Member of the IEEE and has been recognized as some of the World’s 300 main IP Strategist via highbrow Asset administration magazine (IAM). Mr. Dubuc holds a M.Eng. in techniques and computing device Engineering from Carleton tuition and an MBA from the university of Ottawa.
For greater suggestions or to contact Mr. Dubuc, please discuss with his company Profile page.
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