A Single Spark can Start a Prairie Fire: Implications of the 2015 Amendments to IEEE-SA's Patent Policy

AuthorAshish Bharadwaj - Manveen Singh
Pages1-26
A
SINGLE
SPARK
CAN
START
A
PRAIRIE
FIRE:
IMPLICATIONS
OF
THE
2015
AMENDMENTS
TO
IEEE-
SA'S
PATENT
POLICY
ASHISH
BHARADWAJ
MANVEEN
SINGH*
I.
INTRODUCTION
Interoperability
is
a
vital
prerequisite
for
numerous
products,
embedded
with advanced
technologies,
to
work
seamlessly
across
users.
Inoperability guaranteed
the
inevitability
of
Moore's
Law-the
principle
that
has
powered
the
Information
Technology
revolution
over
the
past
four
decades
in
making our world more
digitally
connected
than
ever
before.'
There
is
a
high
demand
for
multiple
inventions
within
one
technology
to
work
together,
and a
need to
have
numerous
technologies
communicate
with
each
another.
Standard-setting organizations
(SSO),
such
as
the
Institute
of
Electrical
and
Electronic
Engineers
Standards Association
(IEEE-SA)
aid
in
facilitating
the
interoperability
of
systems.
2 Published
SSO
standards
outline technical
requirements
that
guarantee
Copyright
©
2018, Ashish
Bharadwaj
and
Manveen Singh.
*Dr.
Ashish Bharadwaj
(corresponding author)
is
Associate Professor
and
Director
of
Jindal
Initiative
on
Research
in
IP
and Competition (JIRICO)
at
Jindal
Global
Law
School.
He
can
be
reached
on
abharadwaj@jgu.edu.in.
Manveen
Singh
is
Assistant Professor
and
Research
Fellow
at
Jindal
Initiative
on Research
in
1P
and
Competition
(JIRICO)
at
Jindal
Global
Law
School.
We
appreciate
the
research assistance
from
Khushboo
Soni,
a
final-
year
law
student
at
Jindal Global
Law
School.
All
errors
remain
ours.
Further,
opinions
expressed
in
the
work
are
independent
of
any
research
grants received
from
governmental,
intergovernmental and
private
organizations.
The
authors'
opinions
are
personal and
are
based
upon
their
research
findings and
do
not
reflect
the opinions
of
their institutional
affiliations.
'
G.
Moore, a founder
of
Fairchild
Semiconductor (and
later
Intel),
predicted
a
doubling
of
components
per
microchip
each
year.
This
prediction
held
true
and
became
known
as
Moore's
Law.
Chris
A.
Mack,
Fifty
Years
of
Moore's
Law,
24
IEEE
TRANSACTIONS
ON
SEMICONDUCTOR MANUFACTURING
202,
202
(2011).
2
The
quantity
of
standards
set
forth
just
by
the
IEEE are
extensive. See,
e.g.,
IEEE
2030-2011
(AM.
NAT'L
STANDARDS
INST.
2013);
ANSI/IEEE
1420.1-1995
(AM.
NAT'L
STANDARDS INST.
2002);
IEEE
1849-2016
(AM.
NAT'L
STANDARDS
INST.
2018).
CAPITAL
UNIVERSITY
LAW
REVIEW
interoperability
across
and within
devices
that
utilize
the
standardized
technologies.
3
With
technology constantly evolving,
the
standards created
across
an
array
of
bodies
in
various
sectors have
undergone
vast changes.
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
Nondiscriminatory
(FRAND)
licensing
practices
for
standard
essential
patents (SEPs) that
cut
across
global
fringes.
SSOs,
such
as
the
Institute
of
Electrical
and
Electronic
Engineers
(IEEE),
the
European
Telecommunications
Standards Institute
(ETSI),
and
the
International Telecommunications
Union
(ITU),
facilitate
this
by
helping
develop
and
manage technical standards,
which are
essentially
technical
requirements
for products
embedded
with patented
inventions.4
The
overarching
objective
of
standard 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
of
products
and
services;
support
government
policies
and legislation for
protecting
user
and
business
interests;
ensure
interoperability
among
products
and
services
that
comply
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.5
3
Patrick
D.
Curran,
Standard-setting
Organizations:
Patents,
Price
Fixing,
and
Per
Se
Legality,
70
U.
Cm.
L.
REV.
983, 985 (2003)
("Technical
standards,
and
the
SSOs
that
develop
them,
are
a common
and
essential element
of
the
modem
economy.
As
early
as
1987,
more
than
four
hundred
standard-setting
groups
had
developed
approximately
thirty
thousand
voluntary standards.
Because
standard
setting requires
particular
expertise
in
specialized
product
areas,
new
SSOs are
constantly
forming
to
meet
the
needs
of
niche
markets.").
4
See
generally
id.;
About
ETS,
ETSI,
http://www.etsi.org/about
[https://permacc/46CZ-45BR];
About
International
Telecommunication
Union
(ITU),
ITU,
https://www.itu.int/en/about/Pages/default.aspx
[https://perma.cc/2MDS-FA3C].
'
Why
We
Need
Standards,
ETSI,
http://www.etsi.org/standards/why-we-need-standards
[https://perma
cc/6YKR-8EZS].
[46:583

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