There was a written policy and it was read at every meeting. Unlike the Rambus case where disclosure was obligated in the JVT it was merely encouraged.
The Chairperson . . . must . . . call attention to the obligation of all
participants to inform the meeting of any knowledge they may have of any
patents, or pending patents, that might be involved in the work they are
undertaking. Appendix E (Legal Guidelines Summary) provides copies of
viewgraphs that should be used at the beginning of the meeting to satisfy this
requirement.
It was an obligation in the Rambus SSO case, However it was only encouraged in the JVT SSO.
According to the ITU-T and ISO/IEC IPR policy, members/experts are
encouraged to disclose as soon as possible IPR information (of their own or
anyone else’s) associated with any standardization proposal (of their own or
anyone else’s). Such information should be provided on a best effort basis.
This might be just a play on words, two very different words and definitions. If this would have been harped on, we might have a totally different judgement.
Encouraged =
1. to inspire with courage, spirit, or confidence: His coach encouraged him throughout the marathon race to keep on running.
2. to stimulate by assistance, approval, etc.: One of the chief duties of a teacher is to encourage students.
3. to promote, advance, or foster: Poverty often encourages crime.
Obligated = morally or legally bound; obliged; constrained.
The Court allowed Broadcom to argue its affirmative defense of waiver because Broadcom had alleged during summary judgment proceedings that it could show that JVT participants
understood that a mandatory disclosure duty existed in circumstances where the express rules merely
encouraged disclosure
Qualcomm says
"QUALCOMM Did Not Participate In The Development Of The H.264 Standard, And Therefore Did Not Owe A Duty To Disclose Prior To Its Release.
The H.264 standard was approved and published by the JVT’s parent bodies in May 2003.
It is undisputed that QUALCOMM did not participate in the development of the H.264 standard
prior to its release in May 2003."
The Judge in my opinion has this all wrong, he says
"As a matter of fact, Broadcom has shown by clear and convincing evidence that
Qualcomm participated in the work of the JVT, monitored it with at least four staff
engineers, received its correspondence, knew of the area of study, filed at least five study
proposals with required IPR forms attached, and knew about its own valuable IPR central
to both the resulting H.264 standard versions published in 2003 and 2005, respectively.
Yet the ‘104 and ‘767 patents were not revealed by Qualcomm before this lawsuit was
filed against Broadcom in October 2005 for producing products which are H.264
compliant."
Filed at least 5 study proposals with required IPR forms attached, after the standard was finalized. Why can't he grasp this? Too many dates for him ?
Qualcomm only participated once the standard was finished and released.
Why would it be unlawfull to monitor the development ?
Monitoring isn't patent ambush. They didn't submit anything, they didn't lead any discussions. If they would have participated this would be in the meetings minutes. The lack of any minutes is telling. The only minutes they have are after the standard. If they didn't participate and only monitored they don't even owe a "Encouraged Disclosure"
OK, so I'm Qualcomm monitoring any SSO and I never open my mouth once and I see the group heading right into my IPR, knowing that the group would circumvent my IPR if I opened my mouth I decide to keep it shut. I have never contributed or lead them to my IPR, what have I done wrong. It's my IPR. This is not patent ambush as I understand it, Patent ambush is suggesting an idea for the standard knowing they will need to implement your IPR.
JVT says if you "participate" you are "encouraged" to disclose.
I can see the judges confusion, he can't distinguish the difference between obligation and encouragement. It's no wonder he is struggling with monitor and participate.
Qgent |
