Overview: The ANSI Intellectual Property Rights Policy Committee (“IPRPC”): Challenges, Organization, and Mission Presented by Earl Nied Vice Chair, ANSI IPRPC September 3, 2010

What is the History of the Intellectual Property Rights Policy Committee (IPRPC)? ANSI Intellectual Property Rights Policy Committee established in 2005 to: develop Institute positions on issues relating to the incorporation of essential patents or other proprietary intellectual property in national, regional or international standards; develop Institute positions relating to exploitation rights to the copyright in standards and the recognition of copyright protection for standards by courts, legislation, regulatory bodies and the industry; develop broad-based policy and position decisions regarding national, regional and international intellectual property matters, including the global trade aspects of such matters.

Why Was the IPRPC Created in 2005? Prior to the IPRPC ANSI had a Patent Group and a Copyright Group In recognition of the growing significance of IPR issues, ANSI’s Board of Directors felt that: the Patent Group was too narrowly focused on IP embedded in standards as opposed to broader issues; it wanted to also cover the global trade aspects of broad-based policy and position decisions regarding national, regional and international intellectual property matters; the Patent Group was not a “real” Policy Committee insofar as its Chairman was not subject to the same term limits and eligibility criteria as other Policy Committee Chairs and was not eligible to sit as a member of the Executive Committee, ex officio.

What are the Intellectual-Property-Rights Challenges Facing the Institute? Two critical IPR-related challenges: Antitrust issues relating to the inclusion of intellectual property in standards; Challenges to developers’ assertion of copyright in standards. These and other IPR-related challenges are now global in scope.

The Antitrust Challenge Successful standards typically incorporate the best technical solutions given market requirements; Sometimes the best technical solutions are patented; This raises antitrust concerns since the owner of the essential patents for the embedded technology could achieve monopoly power and charge unreasonable fees or discriminate against certain competitors in licensing for use of the patented technology; ANSI’s Patent Policy seeks to provide a balanced mechanism for addressing this situation in a way intended to reduce antitrust risks without unduly burdening the process.

The Copyright Challenge Standards that are developed by some committees often embody ideas for how to do something and sometimes are incorporated by reference in laws and regulations. An SDO’s right to assert copyright in standards has been challenged on the basis that: Technical committee members – not SDOs -- “own” copyrights to the standards; Standards are non-copyrightable “ideas;” To the extent standards are incorporated into the law, they should be free.

How Does ANSI Deal with these Challenges? Copyright Task Force Chair: William Scarborough IPRPC Chair: Dan Bart Vice Chair: Earl Nied Other Task Forces As Needed

Institute-Wide Organizational Chart Depicting IPRPC

How do the IPRPC Task Groups Operate? Under the New IPRPC Operating Procedures: IPRPC Task Groups responsible for developing recommended ANSI positions; The IPRPC may establish such Task Groups as are considered necessary to accomplish its mission. Task Group Chairs shall be appointed by the IPRPC Chair from the voting members of the IPRPC. Recommendations of IPRPC Task Groups shall be submitted by such Task Group Chair to the IPRPC for final approval. The IPRPC may accept or reject such recommendations, return the recommendation to the Task Group for further study, give the recommendation to another Institute Policy Committee or take any other action that is deemed in the best interest of the Institute.

What are the Responsibilities of the IPRPC? The Intellectual Property Rights Policy Committee shall be responsible for broad-based policy and position decisions regarding national, regional and international intellectual property matters, including the global trade aspects of such matters (except as otherwise delegated by the Board to another body or to the extent such decision would significantly change or affect the strategic direction of the Institute or the federation). The Intellectual Property Rights Policy Committee shall also be responsible for developing Institute positions on issues relating to the incorporation of essential patents or other proprietary intellectual property in national, regional or international standards and for developing Institute positions relating to exploitation rights to the copyright in standards and the recognition of copyright protection for standards by courts, legislation, regulatory bodies, industry and others. (From ANSI Bylaws)

Some IPRPC and Copyright Group Objectives This Year Continue to implement necessary changes to the ANSI Patent Policy and Guidelines (e.g., patent hold up problem); Explore ways the IPRPC could be structured to operate more efficiently Shortened ballot time line for approval of ANSI positions to be filed with external bodies Establish IPRPC Task Forces on issues brought forward by members or ANSI staff; Full IPRPC would make decisions on recommendations from the Task Forces; Respond to public inquiries from external bodies (e.g., CNIS, EU, OECD, etc.) Clarify ANSI’s position that access to standards does not have to be ‘free,’ but rather just ‘available’ Created a public Web page that includes links to the ANSI Veeck amicus brief, the U.S. Standards Strategy, the OMB Circular A-119 and the NTTAA providing a central location of documents which capture ANSI’s position on this topic in response to recent public debates that all standards should be ‘free.’

Some IPRPC and Copyright Group Objectives This Year – continued Address the issue of National Deviation from Global Standards and Copyright Established Joint IPC/IPRPC Task Force to make a recommendation on what if any action ANSI should take to address this issue; Provide education and training about the finalized Guidelines on Software in Standards and the Guidelines on Embedded Trademark documents; Finalize Copyright FAQ document to provide basic guidance on how U.S. copyright law might apply to the development of voluntary consensus standards Established Copyright Group Task Force to review the current Copyright FAQ document (document CG 014) and determine if additional information should be included such as specific examples typical of standards development helping users understand the complexity of derivative works and also consider including the issue of license to use on a non-exclusive basis.

Some IPRPC and Copyright Group Objectives This Year – continued Meet with and provide input to President Obama’s National Science and Technology Council, Committee on Technology, Subcommittee on Standards, working group on IPR. In March U.S. Chief Technology Officer Aneesh Chopra announced a new federal government effort in the area of standards.  As part of the National Science and Technology Council (NSTC) Committee on Technology (CoT, there will now be a Subcommittee on Standards (SoS).  The subcommittee is co-chaired by the Director of the National Institute of Standards and Technology, Peter Gallagher and Carl Shapiro, Department of Justice.  This Subcommittee will work closely with the Interagency Committee on Standards Policy, which sits at the Department of Commerce. The idea with this additional subcommittee is to tighten the coordination of standards work across federal agencies, which in turn would make interactions between government and industry on standards easier. http://tinyurl.com/ANSI-NSTC Participate in GSC-15 and meet with CNIS.

Questions?