Four sections of the American Bar Association, including the Sections of Antitrust Law, Intellectual Property Law, Science & Technology Law, and International Law submitted comments on the Draft Template for Intellectual Property Rights (IPR) Policies in Industry Standards Organizations (Draft Template) issued by the Electronic Intellectual Property Center (EIPC) of China’s Ministry of Industry and Information Technology (MIIT). The comments represent the view of the Sections and may not represent the view of the ABA as a whole.
While these comments commend EIPC for its efforts to offer a template for standard development organization (SDO) IPR rules, the Sections “respectfully recommend against issuance of a single template to serve for all SDOs and circumstances, particularly on highly disputed issues that are best left to individual SDOs and their members to decide. There are many complexities involved in SDO IPR rules, different views and interests involved, and many different approaches that a particular SDO might validly choose to take. In addition, and importantly, because several issues addressed by the Draft Template remain under active debate among policy makers, SDOs, and market participants in several jurisdictions around the world, there is a substantial risk of conflict that could deter innovation and the efficient operation and success of SDOs in China, undermining EIPC’s stated objective.” The Sections also raise concerns that this policy, by itself, may “unduly influence” standards setting organizations, as it would be promulgated by an institution sponsored by a government agency, namely the EIPC – highlighting the sometimes difficult situation faced by Chinese Government-Organized NGO’s.
This draft Template has been the subject of some controversy. I have been advised by an official at MIIT that this Template should not be construed as an MIIT policy.
Categories: American Bar Association, China IPR, EIPC, MIIT, standards
For a comparison with the US Justice Department’s perspectives on antitrust immunity for a standards setting organization, see the February 2, 2015 Business Review Letter of DOJ to iIEEE: http://www.justice.gov/atr/public/busreview/311470.pdf, which notes that it is unlikely that there is a “one-size-fits-all policy” for all SSO’s. The letter also discusses certain controversial areas under Chinese law, such as what constitutes a reasonable royalty, and voluntary cross-licensing and package licensing.