top of page

Convergence and Competition - A Tale of Two Standards Part 4 - Guest Post by Andrew Myles

Marta Beckwith

Way back when I first started this blog, I interviewed Andrew Myles (see Interview with Andrew Myles - Part 1 and Interview with Andrew Myles - Part 2). As I noted in those posts, Andrew was a contributor to the IEEE 802.11 Working Group for more than twenty years and has also spent a great deal of time in recent years working to promote peaceful coexistence between Wi-Fi, cellular and other radio based telecommunications standards as the Chair of the IEEE 802.11 Coexistence Standing Committee and a participant in ETSI’s Broadband Radio Access Network (BRAN) committee. Andrew was also a Director of the Wi-Fi Alliance for almost twenty years. He knows the world of Wi-Fi, and the issues involved in the complex relationship between Wi-Fi and the cellular standards, inside and out.


I have asked Andrew to write a guest blog. His post focuses on the disruption to the adoption of Wi-Fi 6 (aka IEEE 802.11ax) as an “international” standard caused by a lack of cooperation from six companies: Huawei Technologies Co., Ltd. (Huawei), Telefonaktiebolaget LM Ericsson (Ericsson), Nokia Technologies Oy (Nokia), InterDigital Holdings, Inc. (Interdigital), Panasonic Corporation (Panasonic) and Koninklijke KPN N.V. (KPN).


What follows is Andrew’s post about this problem.


Post by Andrew Myles


I met Marta Beckwith many years ago when we both worked at Cisco, where I assisted her on some Wi-Fi related legal matters.[1] To be clear, I did not provide any legal advice! That is her domain!


We have remained in contact over the years, and she noticed my recent frustration with an issue that has prevented the “international” standardisation of Wi-Fi 6.[2] I have been writing about this issue for more than seven months on LinkedIn; see ISO Needs To Follow Its Own ISO Patent Policy, IEEE 80211ax Related Patent Declarations To ISO Are Required! (July 2024) and ISO Needs To Act (June 2024).


The three LinkedIn posts, and the subsequent related submissions I made to the IEEE 802 JTC1 Standing Committee in November 2024 (detailed below), have not inspired any progress: none of the six companies involved have responded formally to  requests for confirmation that they will (or clarification that they will not) license their Wi-Fi 6 essential patents on royalty-free or RAND terms, and the International Standards Organisation (“ISO”) that is considering the adoption of Wi-Fi 6 as an international standard have not shifted from their strange obstructive position.[3] This lack of action has blocked the “international” standardisation of Wi-Fi 6. Marta asked me to write a summary for her blog about the issues that is accessible to a more legally focused audience. The following is my attempt to do so.


I would be delighted to discuss the issues with anyone interested in solving this problem, particularly any representatives of the six companies mentioned. If you are interested in being part of the solution, please contact me at andrew@myles.au


IEEE 802 has worked with ISO for many years to allow IEEE 802 standards to be recognised as “international” standards


IEEE 802 standards are used by billions of devices every day around the world. Despite this wide-spread use, IEEE 802 standards are not recognized by some countries and some organizations as “international”. This can cause practical difficulties in some markets. For example, IEEE 802 standards cannot be used as normative references in some European standards without an “international stamp” which in turn makes market access in Europe more difficult for certain applications.


IEEE 802 has dealt with the missing “international” recognition pragmatically, by working with ISO to have IEEE 802 standards approved as ISO/IEC/IEEE 8802 series “international” standards. This approach has worked, using a variety of processes agreed between the IEEE Standards Association (IEEE SA) and ISO, successfully for more than twenty years. Over that period, more than one hundred IEEE 802 series standards (or amendments) have been approved and published as ISO/IEC/IEEE 8802 series standards. These processes flowed smoothly for many years until Wi-Fi 6 (based on IEEE 802.11ax) came along.


The process to recognise IEEE 802.11ax (aka Wi-Fi 6) as an “international” standard has been blocked by six companies refusing to respond to ISO


In late 2021, the process for the approval of IEEE 802.11ax as an ISO/IEC/IEEE 8802 series standard was halted by a patent related issue. This issue was brought to ISO’s attention by multiple ISO National Bodies during an ISO ballot. In particular, four ISO National Bodies (Sweden, Finland, Germany & Japan) noted that six companies had refused, under the conditions of the IEEE SA Patent Policy, to agree to license on free or RAND terms the patents that they claimed were essential for IEEE 802.11ax. The six companies (with headquarter locations) are:


•             Huawei (China)[4]

•             Nokia (Finland)

•             Ericsson (Sweden)

•             Interdigital (USA)

•             Panasonic (Japan)

•             KPN (Netherlands)

 

ISO used the information provided by these ISO National Bodies to conclude that these same six companies might not agree to provide free or RAND licences for these same patents under the conditions defined by the ISO Patent Policy. I note that, in order to become an ISO standard, the ISO Patent Policy requires that all SEP holders agree to grant free or RAND licences, under conditions defined by the ISO Patent Policy. Thus, a refusal to agree to RAND terms by these six companies would mean that the approval of IEEE 802.11ax as an ISO/IEC/IEEE 8802-11 series “international” standard could not move forward until the refused technology was removed from the standard or it was established that those patents were not actually part of the standard (in other words, until it was determined that they were not essential to the standard).


ISO then wrote to the six companies, requesting that they respond to ISO in relation to their claimed essential patents using ISO’s Patent Statement and Licensing Declaration Form. I understand that none of the six companies has done so. Certainly, no declarations have been uploaded to the ISO patent declaration database.[5] I further understand that several of these companies refused to do so in email communications with ISO, while others simply did not respond at all to ISO’s request.


ISO’s Guidelines for Implementation of the Common Patent Policy for ITU-T/ITU-R/ISO/IEC specifies that anyone claiming to own IPR relevant to a proposed standard must provide a written statement using ISO’s Patent Statement and Licensing Declaration Form. This form requires IPR holders to select from one of three options:


•    Option 1: willing to provide a free licence

•    Option 2: willing to provide a RAND licence, under conditions defined by the ISO Patent Policy

•    Option 3: not willing to licence; in this case detailed information is also required on any claimed essential patents and how they apply to the proposed standards


Unfortunately, the ISO TPM (Technical Program Management) staff have decided that a refusal by email or no response from a possible SEP owner is equivalent to the claimed SEP owner submitting the form and selecting Option 3 (without any need to provide the detail required by Option 3 that enables an evaluation of the claims of essentiality).[6] The email responses, and failures to respond, thus have effectively blocked the standardisation of IEEE 802.11ax as an ISO/IEC/IEEE 8802-11 series “international” standard.


A similar issue, caused by four of the companies blocking Wi-Fi 6, has also blocked the approval of IEEE 802.11ay (aka WiGig) as an ISO/IEC/IEEE 8802-11 series “international” standard.[7] The blocking of these two amendments means that all future IEEE 802.11 rollups of these amendments will also be blocked.


IEEE SA staff and President blocked a proposal for IEEE 802 to encourage the six companies to provide an appropriate declaration to ISO


There was no obvious way to get ISO to change their position quickly and so, looking for other avenues for progress, I made a guest appearance at the November, 2024 meeting of the IEEE 802 JTC1 Standing Committee (this subcommittee of the 802.11 IEEE committee is responsible for coordinating with ISO on the approval of IEEE 802 standards as ISO/IEC/IEEE 8802 series “international” standards), proposing a way for IEEE 802 to proactively drive a solution to the problem.


My submissions to the IEEE 802 JTC1 Standing Committee are available on its server:



Unfortunately, the IEEE Standards Association (“IEEE SA”) staff and the IEEE SA President would not allow the IEEE 802 Executive Committee to adopt the proposed solution. They asserted that the IEEE SA rules did not allow the IEEE 802 Executive Committee to communicate in any way with the six alleged IPR owners. They also asserted that they were concerned any communications with the six alleged IPR owners would adversely impact the relationship between the IEEE SA and ISO. Finally, they claimed that the IEEE SA’s BoG (Board of Governors) is already was dealing with the issue (and had been doing so for more than two years). On this latter point, I can only observe that the IEEE SA BoG has been extremely slow and/or not very successful given that after more than two years there has been no obvious progress.


On the first assertion, I believe their interpretation of the rules is incorrect. I understand the rules to allow the IEEE 802 Executive Committee or the IEEE SA to send a letter as proposed. However, rather than engage in a discussion as to the correct interpretation of the rules, I was banned from discussing IEEE SA’s interpretation of the rules with anyone, including other members of the IEEE SA. I will observe that this ban on a mere discussion of what the rules mean is not very well aligned with the principles of free-speech, or of an organisation that claims to operate for the benefit of humanity!


Finally, with respect to whether such letters would adversely impact the relationship between the IEEE SA and ISO, the claim sounds more like an excuse when one notes that the IEEE SA BoG  has not worked with the very interested stakeholders in IEEE 802 JTC1 Standing Committee (even on a confidential basis) at any time since the problem first arose more than two years ago. And I have not heard anything more from the IEEE SA BoG on their alleged efforts to solve the problem since I highlighted it again to them in November 2024, despite them being aware of the significant interest within IEEE 802 to resolve this issue.


The IEEE SA BoG had a meeting in December 2024 where the problem should have been discussed. However, the public meeting minutes do not reflect any such discussion. To the extent it was in fact discussed, it would have had to have been in secret in Executive Session. It is difficult to believe that the underlying relationship issues between the IEEE SA and ISO are so sensitive as to justify the IEEE SA BoG’s complete “radio silence” with IEEE SA’s members and IEEE 802 members who are stakeholders in this issue.


It is time for the six companies to provide appropriate declarations, for ISO to follow its own rules and for IEEE SA to work with its stakeholders


This is not a hard problem. All six of the companies have provided letters of assurance to the IEEE SA regarding this issue using the IEEE SA’s IPR form. There is no obvious impediment to them responding similarly to ISO’s request using ISO’s form. First and foremost, these six companies should simply provide a response using ISO’s form. If the six companies do so, whatever that response may be (Option 1, Option 2 or Option 3), then the approval process for IEEE 802.11ax as an ISO/IEC/IEEE 8802-11 series standard can proceed as normal.


I suspect if there are responses from all six companies then IEEE 802.11ax will progress quickly towards approval as an ISO/IEC/IEEE 8802 series “international” standard, on the basis it is unlikely that any of the alleged IPR owners will respond with Option 3, which also requires them to provide a reasonable level of detail about the alleged IPR. Revealing such detail might reveal an “emperor with no clothes” or provide a clear path for an alternative technology to be included in the IEEE 802.11ax standard in order to enable adoption.


IEEE 802 should encourage the six companies to respond by sending a formal letter to the six alleged IPR owners requesting them to make a declaration on the appropriate form to ISO. This was my proposal to the IEEE 802. Of course, this solution will not have any chance of being successful unless the IEEE SA staff and new IEEE SA President (as of January 2025) allow the IEEE 802 Executive Committee to send such a letter to the six alleged IPR owners.


There is a possibility that at least one of the six companies will still refuse to provide a response to ISO on ISO’s Patent Statement and Licensing Declaration Form. The only solution then is for IEEE SA, IEEE 802 and other stakeholders to demand ISO follow their own rules, treating a lack of response on the appropriate form as a statement the non-responding company has no patents relevant to IEEE 802.11ax. ISO is an international organisation that should respect and follow its own rules.


This situation leads to many questions


I have a lot of questions, in relation to the six companies, ISO and IEEE SA, that arise from this issue. Here are some of the questions that I think need answering:


Questions in relation to the six companies


Why won’t the six alleged IPR owners respond to ISO? At least five of them participated in developing the very standard that they are now holding up at ISO. I am assuming the appropriate people within these companies know about the problem. Indeed, I know that legal staff from at least a few of the companies have read my blogs about the issue, thanks to LinkedIn tracking technology. What game are they playing by not responding appropriately to ISO?[8]


Are the IPR claims of the six companies even reasonable? Do they really have IPR essential to the standard? Were those inventions really invented by the alleged inventors (or were they the really the product of ideas discussed by others in standards meetings, or trivial tweaks to what was discussed)? Without a detailed Option 3 response on ISO’s form, we just do not know.


Is this some way of “getting back” at IEEE SA for approving a patent policy (which was subsequently changed) for which most of the six companies are on the record as objecting to? I understand that many of the objectors prefer the ISO patent policy. If so, then why not take advantage of the opportunity to effectively bypass the IEEE SA patent policy with respect to IEEE 802.11ax and apply the ISO patent policy?


Questions About ISO governance


How can ISO justify ignoring its own rules that require a declaration for any IPR to be recognised? The obvious corollary of this rule is that a failure to submit a declaration must be assumed to mean that the company does not believe it has any relevant IPR.


How can ISO justify enabling an alleged IPR owner to essentially veto the approval of a standard with no explanation by a continuing failure to respond and provide the required detail?


How can ISO not recognize that it is enabling future bad behaviour by other alleged IPR owners if it will not take steps to address this issue now? They are creating a roadmap for anyone to block the approval of any standard, merely by claiming to own essential IPR, without any proof or indeed without identifying any IPR or explaining why it is believed to be essential.

 

Questions About IEEE SA governance


Why is the IEEE SA BoG not actively working with IEEE 802 and other stakeholders on this problem and providing meaningful status updates to the IEEE 802 JTC1 Standing Committee and other interested stakeholders.


Why does the IEEE SA BoG discuss so many issues in secret? I know from two terms as a member of the IEEE SA BoG that there is very little justification for secrecy for most of the issues discussed in Executive Session. IEEE has well defined mechanisms to share confidential information appropriately but I fail to see how the issues discussed in this blog involve information that cannot be shared with IEEE SA members at least, and/or publicly discussed.


How can IEEE SA justify not allowing IEEE SA members to discuss the interpretation of the IEEE SA rules that IEEE SA staff and the IEEE SA BoG are relying upon as part of their refusal to allow IEEE 802 to take action?  Is IEEE SA afraid their interpretation may not stand up to scrutiny?

 

Conclusion


As a former Chair of the IEEE 802 JTC1 Standing Committee, an IEEE 802 stakeholder, an IEEE member and a passionate supporter of Wi-Fi, I can say that this whole situation has me really “pissed off” (note use of British English) at many levels.


I am disappointed in the behaviour of the six companies in that they do not seem to respect the Wi-Fi industry enough to even clarify and explain the IPR they allegedly own even though at least five of them participated in developing the very standard they now are blocking.


I am even more disappointed in ISO and IEEE SA. They are supposed to exist for the public good and yet they are not following their own rules. In my opinion, this demonstrates a lack of respect for those they are supposed to serve.


My efforts to enable IEEE 802.11ax at an ISO/IEC/IEEE 8802-11 series “international” standard have come up short and I am not longer involved in Wi-Fi standards activities on a daily basis. I am not sure what else I can do. My call at this point is for others to put pressure on the six identified companies, ISO and IEEE SA to get their act together and just do the right thing. The status quo reflects poorly on everyone and is harming the public by hindering the deployment of Wi-Fi 6 at a critical juncture!

 

 

[1]          Note from Marta: we originally met almost twenty years ago in connection with the Commonwealth Scientific and Industrial Research Organisation (CSIRO) set of cases against the Wi-Fi equipment makers. The CSIRO set of cases was the first significant litigation involving the 802.11 standard.

[2]          Note from Marta: Andrew is an Aussie so his spelling and usage of certain words and mine may be different, e.g. standardisation vs standardization and licences vs licenses.

[3]          Note from Marta: IEEE uses the terminology reasonable and non-discriminatory, i.e. RAND, whereas ETSI uses the terminology fair, reasonable and non-discriminatory, i.e. FRAND. Everyone treats RAND and FRAND as interchangeable but since IEEE uses RAND, this article will too. Also, the ISO IPR rules allow for acceptance of declarations that either agree to grant royalty-free or FRAND licenses. For the sake of brevity, this post will use RAND to mean both collectively.

[4]          Note from Marta: Unlike the other 5 entities that have submitted letters to the IEEE refusing to license certain patents essential to 802.11ax on RAND terms, Huawei has submitted both a refusal and an acceptance of RAND terms for 802.11ax. On May 28, 2019, Huawei provided a negative letter of assurance in which it refused to grant licenses to its IPR on RAND terms for 802.11ax (as well as 802.11aj, 802.11ay and 802.11ba): neg-loa-802_11ax-huawei-28May2019.pdf. Subsequently, on July 25 2019, Huawei said it would license its SEPs for 802.11ax (and 802.11aj) on RAND terms: custom-loa-802_11ax-huawei-25July2019.pdf. It therefore is even more baffling that Huawei, which apparently has agreed to RAND terms in the IEEE, refuses to inform ISO that it is willing to license on RAND terms.

[5] You can review here:

[6]          Note from Andrew: This position by ISO TPM staff appears to conflict with ISO’s Guidelines for Implementation of the Common Patent Policy for ITU-T/ITU-R/ISO/IEC.

[7]          Note from Marta: The companies that provided negative LoAs to the IEEE with respect to 802.11ay are nearly the same as those that provided negative LoAs for 802.11ax.  They are: Huawei (neg-loa-802_11ay-huawei-28May2019.pdf), Interdigital (negative-loa-802_11ay-interdigital-30Nov2018.pdf), Nokia (negative-loa-802_11ay-nokia-22May2019.pdf) and Panasonic (neg loa 802 11ay panasonic 14Feb2018).  It appears that Telefonaktiebolaget LM Ericsson and Koninklijke KPN N.V. did not provide any LoAs (negative or positive) to the IEEE in connection with 802.11ay.

[8]          Note from Marta: for example, it appears as if KPN did not participate in the development of 802.11ax (I have been unable to find any 802.11ax meeting minutes which reflect participation by anyone who stated they work for KPN). Nonetheless, KPN submitted several negative letters of assurance to IEEE stating that it had IPR essential to the 802.11ax standard for which it was unwilling to grant licenses on RAND terms. neg-loa-802_11ax-KPN-263-07Sep2023.pdf; neg-loa-802_11ax-KPN-846-07Sep2023.pdf; and Microsoft Word - loa-2023Jan01.docx. Given that KPN submitted 3 negative LoAs to the IEEE in 2023, it seems very calculated of KPN not to submit the ISO form in response to ISO’s request to do so. KPN clearly has the capacity and knowledge to submit such a response, but simply chose not to do so.

 

SUBSCRIBE FOR UPDATES

Thanks for subscribing

© 2023 by SEP Essentials. This blog is supported by the Computer & Communications Industry Association. Powered and secured by Wix

  • Grey LinkedIn Icon
bottom of page