IEEE accreditation under spotlight at US standards body

16 February 2016. By Lewis Crofts and Matthew Newman.

An umbrella organization that accredits standards bodies in the US heard arguments last week against offering reaccreditation to the Institute of Electrical and Electronics Engineers in the wake of a controversial change to its intellectual property policy.

A 13-member panel from the American National Standards Institute, or ANSI, is expected to issue a written decision in the coming weeks on the IEEE’s reaccreditation following the three-hour appeals hearing held in New York on Feb. 9.

The appeal, the latest of several by the same companies, illustrates the disquiet among some patent holders at the IEEE policy change. But numerous companies — including Apple, Intel, Cisco Systems and Verizon — supported the update and say it has a positive impact on licensing.

Representatives of the European Commission and the French government are understood to have attended the hearing as observers.

The appeal is based on IEEE’s new IP policy, which limits the ability of patent holders to obtain injunctions on patents that have become embedded in standards. The changes also require patent holders to make their intellectual property available to component makers — as opposed to only licensing it to end users — and stipulate that patent royalties or damages should be based on the “smallest saleable unit.”

The policy has been criticized by patent holders as inconsistent with the current state of US law.

The appeal of IEEE’s reaccreditation was filed by Alcatel-Lucent, Ericsson and Qualcomm, with support from five other companies: Fraunhofer, InterDigital, Nokia, Orange, Royal Philips and Siemens.

Lawyers for the companies and IEEE presented arguments for 45 minutes each. The ANSI panel then questioned the attorneys for roughly two hours.

The arguments are said to have focused on two issues: whether the change to IEEE’s patent policy is consistent with ANSI’s policy; and whether the procedure used to change the standard-setting organization’s policy conforms with the ANSI’s “essential requirements” of due process.

The appealing companies argued that IEEE’s intellectual property rights policy goes beyond that of ANSI on the issue of the availability of injunctions and on the definition of a reasonable rate. IEEE’s attorney said that the ANSI patent policies represent minimum requirements, but don’t bar organizations from adopting additional conditions.

The companies also said that IEEE’s process wasn’t consensus-based, as no members with divergent views were allowed on the committee that drafted the policy.

IEEE attorneys said the group undertook a public, transparent process that went through four stages of review. They also said that the US Department of Justice’s antitrust division reviewed the substance and procedure followed to adopt the policy and found no antitrust violations.

ANSI accreditation isn’t mandatory, but federal, state and local bodies sometimes require it for regulatory or procurement purposes. IEEE has been accredited by the group since 1982. But when a standards organization makes major changes to its policy, it must seek reaccreditation.

ANSI agreed to reaccredit IEEE in September, but several groups opposed to IEEE’s policy change appealed that decision, leading to last week’s hearing. Depending on the outcome of this appeal, the companies have one additional level of appeal available within ANSI to challenge the reaccreditation.

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