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To: Ruffian who wrote (22728)	2/9/1999 10:09:00 AM
From: DaveMG	Read Replies (1) \| Respond to of 152472

Nice work Michael: From itu.int PATENT SITUATION FOR CDMA PROPOSALS FOR IMT2000 Introduction An ITU press release of 7 December 1998 ITU/98-34 warns that “CDMA-based RTT proposals for IMT-2000 could be excluded from further consideration if IPR stalemate is not resolved by the year end”. According to the press release, the problem derives mainly from a declaration by a company, proponent of a candidate RTT, claiming that [it holds patents] “on most other CDMA proposals such as Europe's UMTS Terrestrial Access, Japan's ARIB's CDMA, WCDMA /NA of T1P1, and Korea's Global CDMA. The claimant is not willing to waive the IPR rights ... nor negotiate licenses with other parties on a non-discriminatory basis on reasonable terms and conditions.” The press release cites “principles” proposed by the company, under which the company is prepared to license patents it claims are essential to competing proposals. Purpose of ITU Patent Policy The Telecommunication Standardization Sector and Radiocommunication Sector have developed a joint “code of practice”, published in Circulars of the respective Bureaux TSB and BR. This "code of practice" regarding intellectual property rights covers ITU-T and ITU-R Recommendations involving patents, with the “objective that Recommendations, their applications, use, etc. are accessible to everybody…it follows that a commercial (monopolistic) abuse by a holder of a patent embodied fully or partly in a Recommendation must be excluded. To meet this requirement in general is the sole objective of the ..code of practice”. (Underscore added). TG8/1 participants are well aware of the operative provisions of the code of practice. Its “sole objective” is cited here as guidance to clarification and correction of the complex and, we believe, misunderstood IPR situation in which the IMT2000 process finds itself today. We refer specifically to the situation described by the press release. As for developments elsewhere, there is evidence of growing reason, cooperation and progress in IPR forums of international industry for third generation wireless. Challenges by competitors in the ITU process to other proponents' IPR situation We draw attention to the suggestion in the ITU press release that the challenge by one participating company might disqualify some CDMA candidate technologies from the process toward a Recommendation. Indeed, the press release suggests that further consideration in the IMT2000 process of any CDMA technology may be at risk based on the claims by the single participant. …. In general, such a claim might be false or frivolous, though there is no suggestion of that in the present case. To exclude mature CDMA proposals on the claim of one company is unthinkable. The fate of the IMT2000 process is a matter for TG8/1 action and Study Group 8 decision. Are CDMA candidatures to be considered fully and processed up to the final stage or not? The company claiming virtually comprehensive IPR has not threatened other participants, but has challenged them. CDMA proponents confident of the adequacy and validity of their IPR, and who have complied with ITU IPR disclosure and agreements, are free to contribute the merits of their technologies to international standardization. Only a wrong decision in this matter by ITU's TG8/1 could create the disastrous result feared by the press release. The result would be wrong and damaging to CDMA proponents, to telecommunication activities seeking advanced CDMA services, and to the ITU process itself. Suspension of certain candidatures could damage the ITU process because it places an ITU body effectively in the position of deciding between parties in an IPR dispute. To block consideration of one or more CDMA technologies in which the proponents have full confidence in their IPR positions has the effect of validating the claim of the challenging party, thus deciding in his favor. The consequences could be great cost to affected parties, their related interests and potential users. Neither ITU nor its various bodies have mandate or competence for such a decision which is properly made by mutual agreement between the parties, or by a court of law. Conclusion We conclude that there are no grounds to exclude or suspend, on the basis of challenge to IPR, consideration of any candidate RTT technology submitted in compliance with agreed TG8/1 requirements and procedures. While ITU policy requires disclosure of patents and agreement to license, the policy does not require evidence or defense of validity of patents. A proponent of a candidate technology for standardization, for business reasons and to assure successful exploitation of his product, has great incentive and expense to confirm his IPR thoroughly. In the ITU process, challenge of IPR for a particular technology is a matter for consideration only by the proponent of that technology as he may deem necessary. It follows that neither ITU nor any ITU body may take any action or give any weight to any challenge to IPR, nor take any action which would have the effect of a decision or recognition of validity of IPR position of one of the parties over the other(s). An ITU body must remain totally neutral. It may act as mutually agreed by affected parties, or aid mutual resolution of their dispute. In summary, with respect to the current TG8/1 process of developing a Recommendation for IMT2000, neither TG8/1 nor any ITU body may suspend or delay the process for any candidate technology for the reason of hostile IPR claims. On the other hand, TG8/1 must follow its own agreed administrative procedures. In particular, TG8/1 is obliged not to consider a candidate RTT which is not supported by the patent holder's disclosure of and required agreement to license his relevant patents. Indeed, participants who have complied with the patent policy have reason to protest vigorously the continued consideration of any non-compliant candidate RTT. Such a requirement would be impractical; validation is typically established by a court only much later in case of legal challenge

To: Ruffian who wrote (22728)	2/9/1999 10:43:00 AM
From: Clarksterh	Read Replies (2) \| Respond to of 152472

Bad news for Qualcomm: It appears almost everything coming out of that conference was a slam at Qualcomm, and if that wasn't bad enough, many of the signatories are people who should be in Qualcomm's court: IPR should not be used by any company or group of companies to: - Delay the introduction of IMT-2000 systems and services - Withhold the use of technology from a harmonized international standard - Restrict the import or export of third generation equipment to or from any country (consistent with international trade agreements) - Increase the cost of third generation systems, services and products, beyond historical reasonable and customary levels - Stifle innovation and the free flow of ideas among companies engaged in developing global IMT-2000 specifications. Signatories include Bell Atlantic, Sprint and Air Touch, all of whom will be hurt if the accepted world wide standard is not backwards compatible with CDMAOne (note that if both W-CDMA and CDMA-2000 are ITU standards, I would expect that W-CDMA will predominate unless it takes way to long to get off the drawing boards. This is, I think, Qualcomm's justifiable fear and it should be Sprint's as well.) BTW I say that this is aimed more at Qualcomm than Ericsson because most of the things listed are things which Qualcomm has been accused of before, but Ericsson has not. This could almost be a rewording of an Ericsson press release with the Qualcomm name stripped out. (A little exageration, but not much) And some of the other pieces are even more clearly aimed at one company (the excerpt about one company holding up the show, ...). Final note, in the nature of a Maurice-like rant: It irritates me a great deal that people are telling others what to do with their IPR. Imagine people telling a manufacturer that they are only allowed Gross Margins of less than 15% or some such. IPR is property much as the plant is, and if the owner wants to charge a usurious fee and drive himself out of business in the long haul, that is his problem. If others can work around the IPR, then good for them, but don't be telling others what to do with their property! Clark

To: Ruffian who wrote (22728)	2/9/1999 9:35:00 PM
From: Clarksterh	Read Replies (2) \| Respond to of 152472

Walt et al - Just finished reading ARIB (Japanese) summary of harmonization effort. It's actually pretty positive, unlike the stuff I was bemoaning this morning. It looks like they are willing to compromise (of course Qualcomm is compromising too, but there is nothing wrong with that). For those interested in the technical details of the compromise it is very good reading. itu.int After reading this I'd say that it is pretty clear that it is ETSI that is the holdout. (For instance on chip rate they say that the new chip rate is not a problem.) Note that this is what Gregg has been saying all along, but this is the first truly independent confirmation of it. Clark