We are back with Andrew Myles. Please see my Interview with Andrew Myles – Part 1 for information about Andrew and his background.
My first set of questions relates to how things have changed over the time you have been involved in standard development. Let’s start with participation in the meetings. What have you seen change over time related to who participates in standards development?
One thing that has really changed in the 802.11 development effort is that some companies now send very large numbers of employees to participate, and sometimes those people seem to vote in blocks even though they are supposed to vote as individual contributors. This has really changed the dynamic in the Working Group. As I previously said, in the IEEE-SA, you need 75% of the votes to add or remove technology from a standard. This consensus model has worked pretty well most of the time. But when one company has so many voters and those voters work as a group, that single company can block any proposal: they usually cannot force acceptance of a proposal, but they can effectively block one. Individual voting is a good idea but like any system, people can take advantage of it. I’m seeing more of that now.
Also, in the early days, nearly every participant in standards development had either implemented an earlier version of the standard and wanted to implement the next version, or was planning to implement the standard into their products. We have always had an occasional sprinkling of non-implementers but historically these non-implementers have been university researchers and the like with lots of experience in the field. Several years ago, I started to see more participation by non-university non-practicing entities – companies that are there to make money from licensing and do not plan to implement the standard into many or any products.
In my experience, these companies do not contribute much to the development of the standard. They seem to attend primarily to extract ideas which they then race out to patent, sometimes with trivial variations. They take a bunch of the ideas that are being discussed within the working group and mash the ideas together into a patent filing on technology they then claim to have invented. In my view, they do not add any real value to the standardization efforts, do not contribute useful ideas and are instead taking unfair advantage of the collegial and cooperative environment in the IEEE 802.11 Working Group.
What changes have you seen over the years in how standards are improved?
It used to be the case that there was a lot of technology that was developed outside the standard development process to improve how the standard operated in real products. These improvements were then fed back into the standard. For example, much of the technology that went into the 802.11v amendment (which relates to wireless network management) came from inventions created around Cisco’s CCX program. But this feedback loop does not seem to happen so much anymore.
How has COVID impacted standards development?
Covid has made things both better and worse. During the Covid shutdowns, the 802.11 Working Group began having online meetings. Before that, all of the Working Group meetings were in person only. Being in person is both good and bad. When we were in person, it was harder to attend and so typically less people from fewer companies went to the meetings. As I said before, IEEE is an individual contributor membership organization. You need to attend a certain number of meetings in order to become a member. The problem I spoke about with a very large group of people from a single company attending meetings and acting as a block became more acute when we were having online meetings. It just became so much easier to attend enough meetings to become a member. But that increased membership was also a good thing because we had increased participation and better access to the meetings by more people from more companies. Standards need openness to become great. Standard meetings should be easily accessible by everyone.
Online meetings also make it harder to reach consensus. It is just much harder to manage participation by so many people when meetings are online. And those hallway conversations that often drove consensus simply do not happen in the same way when we are not there in person.
Right now, the Working Group is operating using a hybrid model with some people online and some in person. This in my view is the worst of both worlds – very hard to manage and the in-person people have a significant advantage over the online people because of those hallway meetings. The hybrid model also discourages online attendance by charging online participants the same as in person attendees -- but with no cookies!
I want to now discuss issues related to standard essential patents and licensing. Full disclosure, Andrew and I met during our years at Cisco because of a series of lawsuits in which a patent claimed to be essential to a standard was asserted against most of the companies that implemented that standard. So Andrew you have some experience with standard essential patents and licensing.
I do have experience with issues related to standard essential patents and licensing but not so much from the standard development side. We try very hard not to discuss patents when we are developing a standard and leave those issues to others. There have been a couple of times when entities have refused to provide letters of assurance and we have had discussions in the working group about removing that technology from the standard. Both times, the entities had provided LoAs for earlier versions of the standard but refused to provide LoAs for the next update. The first time, this resulted in a significant delay in adoption of the next version of the standard because it was very hard to make the updated version of the standard backwards compatible without using the existing technology. More recently, an entity provided a negative LoA (in which it refused to license on FRAND terms) but then later agreed that they were bound by an LoA that a subsidiary had provided so we ended up not needing to remove the technology.
I have been in the telecommunications/networking industry for a very long time and have seen problems arise with standard development and implementation because of standard essential patents. Over the years, I have seen that patents have become a burden for certain standards where a small number of participants make a lot of money out of their patent portfolios. These companies seem to use their standard essential patents almost as a weapon to block competitors. It is one of the things that make chips that implement certain standards much more expensive.
How important are standard essential patents to the development of telecommunication standards?
In my view, the whole patent system is broken. We want to encourage invention in the standard development arena, but standards are a group development effort. Ideas may start out with one company or another, but we all work together to improve them and the sum (the standard itself) is much greater than each of the separate ideas.
Also, at the initial standard development stage, for almost every idea that ultimately goes into the standard, we could have gone with a different, equally as useful idea and the original idea has been modified and adapted during the group standardization process before it becomes part of the standard. Standard essential patents mostly cover these original, replaceable small ideas. In my view, most patents related to standards development these days are not really claiming “inventions”. The vast majority of standard essential patents do not have much if any value outside the context of the standard itself. The important thing in creating a standard is not the original individual ideas but the collection of those ideas, the improvement of those original ideas by the group, and the merger of those improved ideas into a cohesive whole.
Does licensing of standard essential patents encourage people to contribute to the standard?
Not in my industry. The vast majority of companies that have their people participate in standard development make money by selling products that implement the standard. Companies are rewarded for having people participate and contribute by the ability to sell those products. For almost every company that participates and contributes, licensing is not the goal. Implementation is. Licensing does not drive people to contribute to standards at all in my experience. However, it does encourage some entities to “borrow” ideas from the group and unfairly rewards individual entities at the expense of all other contributors and sometimes at the expense of the standard itself.
How would you change the current rules regarding standard essential patents?
I would make the RAND/FRAND commitment a condition of participation in standard development. If you want to be involved in standards development, you need to give something up from what you are getting from the process. It should not be the case that you can participate in the development of a standard, contribute an idea to that standard and then later on say you will not license on FRAND terms. To create good standards, we need to be free to focus on the technology, not on patent related issues. If you want to be involved in standard development, then there should be a tradeoff. You should have to agree to license on FRAND terms. It is objectionable to me that companies have given negative LoAs.
A company does not need to participate in the development of a standard. It is a choice. But anyone who participates should be required to give an LoA up front (under the very reasonable rules set by the IEEE SA) before the Working Group has invested any time or energy in the idea. We do not want to incorporate anyone’s ideas into the standard if they will not agree to license on FRAND terms. If you walk in the door, it should be on the basis that you have agreed to commit to license on FRAND terms.
Also, there is only one standard. There are updates and amendments to that standard, but the FRAND commitment should be for that standard, not for a specific version of the standard. You should not be able to make a commitment and then withdraw if for that same technology contained in a later version of the standard just because other technology within the standard has changed.
Finally, I think the IEEE-SA has it right when it decided not to allow injunctions. There are some telecommunications standards for which patents, licensing and litigation are a huge problem. This has not happened as much in the Wi-Fi space. There have been some fights over the years but not so many. The IEEE-SA does not require companies to give away their IP for free but does seek a RAND commitment from every participant which requires a commitment not to seek an injunction. RAND requires reasonableness. By taking away injunctions you take away the leverage to get rates higher than what is reasonable. We need a framework that allows people to negotiate in a sensible way, not under threat of an injunction.
Unfortunately, some SEP holders are trying to hold up the adoption of the most recent version of 802.11 (WiFi6/802.11ax) as an ISO/IEC/IEEE international standard because of the IEEE-SA’s IPR policy. This is an example of inappropriate behavior by a handful of companies and it’s just wrong and objectionable.
Do you have any parting words for us?
Standards are intended for the benefit of humanity, the benefit of us all, not for the benefit of individual contributors or SEP licensors. We should encourage contributions to standards in order to create great standards, keeping patents and licensing out of the standards development process as much as possible. Engineers are good at creating standards and need to be free to focus on the technology. Lawyers are terrible at creating standards and should restrict themselves to protecting the standard from those who unfairly seek to enrich themselves at the expense of the standard and at the expense of all of us who have worked so hard, collectively, to develop it.