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Ex ante: disclose IP before, not after standardization

Ex ante: disclose IP before, not after standardization
by Don Dingee on 08-17-2012 at 3:46 pm

Many of the audience here are involved in standards bodies and specification development, so the news from the Apple v. Samsung on the invocation of ex ante in today’s testimony is useful.

I worked with VITA, the folks behind the VME family of board-level embedded technology, on their ex ante policy several years ago, and can share that insight. I’m not a lawyer, nor do I play one on TV, so this is the highly simplified, non-legalese version of the rules. Consult your legal department with any questions.

  • If you’re working on a specification with a standards body, and it looks like your company has IP in the form of a patent or patent pending applies, you must disclose that. You’re not yielding your IP rights when doing so, and in fact you’re protecting them for later.
  • If the standards body and its membership decide that the technology is appropriate for use in the specification, it’ll proceed through the normal channels of approval with the accompanying IP disclosures so balloters are aware of the possible implications.
  • The standards body and its membership might decide to re-engineer the specification to avoid impinging on the IP in question.
  • Should the standard be approved with the IP in question, there will be a discussion of FRAND – fair, reasonable, and non-discriminatory licensing for use of the IP inside.

What this prevents is the unwitting or unvigilant members of a standards body picking up a duly approved specification, implementing it, then finding themselves the target of an IP claim from the company that got their IP engineered in.

ETSI, the European telecom folks behind 3GPP, LTE and other specifications, just whacked Samsung over the head with their ex ante policy in testimony today. Three articles for more reading.

CNET: Former ETSI board chief: Samsung flubbed disclosures
EETimes: Apple Claims Samsung Views Patent Disclosures As ‘Stupid’
AllThingsD: Apple: Samsung Didn’t Live Up to Its Standards Obligations

Ex ante has been vetted through the US Dept. of Justice and forms legal precedent, so whether you agree with it or not isn’t the issue. It can and will come back to the surface if the standards body backs its members.

Well played, Apple. We’ll see where this goes.

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