附 : 附附附附附附附附附附附附附附附 附 () 附附 Articles 本本本本 。体,。 This intellectual property rights (“IPR”) policy template is intended to help industry standardization organizations deal with issues involving IPR in standards setting and revising. While developing their specific IPR policies, industry standardization organizations may use the contents and basic concepts of this template as reference. 附 附附附 一 附附 一 本本本本本本本本本本本本本本本本本本本本本本 , <SDO Name>本 本 本 本 本 ,,,。 <SDO Name>本本本本本本本本本 Chapter I General Provisions Article I To properly deal with IPR issues in the process of industrial standardization, balance the interests of IPR holders , standard implementers and the general public, and promote the implementation of standards, <SDO Name> hereby formulates this IPR policy . This IPR Policy outlines the management rules of the <SDO name> regarding IPR as related to the standards development effort, and the specifications developed thereof.
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Do the membership management rules admit patent owners of all countries/nationalities? Do they not discriminate? Is there only one class of membership? This should be clarified, otherwise the obligations imposed upon “members” can become unclear.
How to deal with Utility Models or Designs (or less likely, Invention Patents), that are “no quality”, or would otherwise likely be abandoned by the time the standard goes into force?
What constitutes a “member” – a “voting member”, what about observers? What if foreigners are not permitted to vote?
Mark A. Cohen, 11/28/14,
This is a convenient opt-out for non-necessary claims. It leaves open the question of under what circumstances a non-participant in an SDO can be compelle to license a patent for a standard, and for what type of standard?
jurisdiction of, fails to participate in, or fails to
comply with the outcome of, an independent
adjudication of FRAND licensing terms.
With the validity of Patent determined by
the relevant authority, such FRAND
adjudication must be made by courts or
arbitration tribunals (if mutually agreed) of
competent jurisdiction, that can determine
FRAND monetary compensation and other
licensing terms, and that will adjudicate any
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Mark A. Cohen, 11/28/14,
Should be a binding adjudication.
Mark A. Cohen, 11/28/14,
What constitutes “fails to participate”? Shouldn’t it be “fails to conclude in good faith in a manner that doesn’t prejudice the licensor”, or similar?
Mark A. Cohen, 11/28/14,
What rights are being granted here? A limited right for developing the standard? The right to reproduce? Does this apply only to the draft standard? What about rights of adapation? Translation,etc? There is old case law about copyrights in granted patents in the US. Probably more specificity is required regarding the content of the transferred copyright and when use of the content is outside of the license.
What is “smallest component” – the least expensive? Why smallest? Might it not be the largest or most expensive or most closely related? Presumably this leaves non-necssary claims that don’t relate to the smallest saleable unit to be asserted outside of F/RAND obligations?
This approach ignores that mandatory license terms imposed under Chinese law are different for the licensor if he is a foreigner than for a domestic licensor. This creates a problem in trying to achieve an equal cross-license. In fact indemnities required against third party infringement of a foreign licensor necessarily mandate that a Chinese licensee may should be paying more for the license than s/he would if the licensee were located overseas.
Presumably the SDO can reproduce the standard and make it available for its own purposes, according to terms to be determined by it. I assume the licensors retain a right to use the standard for their purposes as well – such as in enforcing their rights or seeking licenses?
Does the license need to be governed by the laws of the PRC? What is a claim relating to this IPR policy – only claims regarding the management of the SDO?
Mark A. Cohen, 11/28/14,
This seems to be compatible with the Software Copyright Protection Regulations, Art. 17: 第十七条 为了学习和研究软件内含的设计思想和原理,通过安装、显示、传输或者存储软件等方式使用软件的,可以不经软件著作权人许可,不向其支付报酬。However, by insuring that the license is royalty free, there may be few incentives to develop licenses to implement the standard, or to improve it. If the intent is to develop an open source system for software licensing, then more specific terms need to be provided.
While the SDO can interpret the policy, to the extent that the SDO policy and F/RAND obligations are contractual in nature or matters of corporate governance, or related to a government organized non-governmental organization– some clarity should be given about how disputes arising under this policy should be adjudicated or determined.
Attachment 2:Default Licensing Form for the Member of <SDO Name>
According to the <SDO Name> IPR Policy, Members shall complete this Default Licensing Form, which shall be submitted to <SDO Name>
Member:_____________________________________________________Name:___________________________________________________________Authorized delegate(Printed name):_________________________________Signature:______________________ Date: ____________________Address:________________________________________________ Post Code:________________________________Tel:_____________ Fax:________________ Email: ________________________
(Please read the directions before filling out the forms)
Form I:A confirmation of the Subgroup(s) in which the Member wishes to Participate and the default obligations the Member agrees to commit:
As a Member of <SDO Name>, we confirm Participation in the following Subgroups: ( “ x” means confirmation):
□all of the Subgroups (means all existed and going to be created subgroups)□XXXX Subgroup□XXXX Subgroup□XXXX Subgroup□XXXX Subgroup
As a Member of <SDO Name>, according to the IPR Policy of the <SDO Name>, we commit to the following default licensing obligations for Necessary Claims in the Final Standard :
□FRAND-RF□FRAND
Form II:Default licensing obligation committed to by the Member for the Subgroup(s) that the Member does not join:
As a Member of <SDO Name>, we do not confirm Participation in the following Subgroups:(“x” means confirmation):
□XXXX Subgroup□XXXX Subgroup□XXXX Subgroup
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□XXXX Subgroup
As a Member of <SDO Name>, according to the IPR Policy of <SDO Name>, we commit to the following default licensing obligations for Necessary Claims in the Final Standards produced by Subgroups of which we are not Members:
□FRAND-RF□FRAND□No Licensing
Stamp:
Date:Year Month Day
Directions:(1) Members may wish to select “all of the Subgroups” in Form I to avoid the discommodity of
creating new Subgroups. Under this condition, Members only need to fill Form I(2) Members may also wish to fill in this form when a new Subgroup created, to confirm or
disconfirm the Participation and the default licensing obligations for the new Subgroup.(3) If the obligations a contributing Member promises are different for different Subgroups, the
above forms I and II can be copied and completed separately according to the circumstances of the Member.
Attachment 3:Form of the Disclosure and Licensing of PatentsFor Contributions of Members of <SDO Name>
According to ”IPR Policy of Industry Standardization Organizations” article4, 5, 6, 7 etc, Members shall fill in the following forms when they propose technical Contributions to <SDO Name> and the forms shall also be applied as a necessary appendix of the Contribution.
Subgroup: XXXX□_______XXXX□_______XXXX□________XXXX□_____File No. of Contribution: Date:_Topic of the Contribution: Contributing Member:_____________________ Authorized delegate(Printed name): Signature:Tel: Email: _______________ Fax:Address: Post Code:
Contributing Member shall fill in Form A or the corresponding sections of Form B to complete this Form. Contributing Member may voluntarily fill in Form C.More lines can be added to each form, if necessary.
Form A: The Contributing Member is aware of not having any granted or pending Patents associated with the technical content of the Contribution.□
Form B: Granted Patent and/or published Patent application □The Contributing Members or their Affiliates who have granted Patent and/or published Patent applications shall fill in the following form.
No. Title patentee’s or
applicant’s name
No. of Patent Or
No. of Application
Date ofGranting Or Date of Application
Countries and regions where the Patent is granted or published
Details of the Patent
and Relationship
with the Standard
(voluntarily
fill in)
Licensing commitment (Please make a choice)(a)FRAND-RF(b)FRAND
Other LicensingInformation
1.2.
Form C Voluntarily fill in
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Contributing Members may voluntarily disclose the granted Patent or Patent application of others that they are aware of:
No. Title patentee’s or
applicant’s name
No. of Patent Or
No. of Application
Date ofGranting Or Date of Application
Countries and regions where the Patent is granted or published
Details of the Patent and
Relationship with the Standard
(voluntarily fill in)
Other disclosedInformation
1.2.
Stamp:Date:Year Month Day
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Mark A. Cohen, 11/28/14,
This clarifies that foreing patents are included, at least for this document.
Attachment 4:Form of the Disclosure and Licensing of Patents for Draft Standard
Draft Standard Name:________________________________ Member Name:_____________________________________
Authorized Delegate (Printed Name): Signature:Tel:__________ Email:________ Fax: Address: Post Code:
Members and their Affiliates who own the Patents or Patent applications which meet the Necessary Claims of the Draft standard are required to fill in the form under the relevant licensing obligations of the relative regulation of <SDO Name> IPR Policy.
The contributing Members could supply a more favorable licensing commitment for these disclosed Patents or Patent applications in their Contribution by fill in the following form, in comparison with the licensing commitment they made in the “Form of the Disclosure and Licensing of Patents for Contributions of Members of <SDO Name>”.(More lines can be added to each form, if necessary)
No. Title patentee’s or
applicant’s name
No. of Patent Or
No. of Application
Date ofGranting Or Date of Application
Countries and regions where the Patent is granted or published
Details of the Patent and
Relationship with the Standard
(voluntarily fill in)
Licensing commitment for Necessary Claims in the Final Standard(a)FRAND RF; (b)FRAND;(c)No Licensing
Other LicensingInformation
1.2.
If no such declaration is made before a Draft Standard is submitted to the Standard Approval Authority, Members and their Affiliate(s) shall be treated as they have no such Patents or Patent applications related to the Draft Standard. Member’s Default Licensing Obligation shall apply to any of their Necessary Claims.