Committee Report and Workplan - Std and OS Comm - October 2015

AIPLA Committee Report and Workplan

DATE: October 12, 2015 MEETING: 2015 Annual Meeting

COMMITTEE NAME: Standards and Open Source

COMMITTEE LEADERSHIP: Chair: David Long, Kelley Drye & Warren LLP Vice Chair: Joanne Montague, Davis Wright Tremaine LLP

DISCUSS THE OVERALL MISSION OF THE COMMITTEE AS IT RELATES TO AIPLA’s VISION, MISSION, and VALUES:

The development and use of collaborative technology such as open source software and industry standards have become widespread in virtually all industries. High profile lawsuits and regulatory activities continue to focus attention on the unique intellectual property issues that arise in connection with licensing such technology. Our Committee considers the laws, regulations, and judicial and administrative decisions that affect collaborative technology development. In particular, our Committee considers matters relating to industry standards and open source software issues insofar as they relate to intellectual property in any form.

Our Committee develops and shares information on policies and current practices for those participating in standards setting organizations and software development communities in which participants share intellectual property rights to develop standards and software respectively. Our Committee also develops and shares information on policies and current practices involving the use and promulgation of intellectual property rights incorporated in technology standards and open source software.

PROJECTS:

Plans for stated meetings:

2015 Annual Meeting: Our Committee is working on a plenary session with the Antitrust Committee and the China Committee. China and its rapidly evolving antitrust regime, often criticized for issues regarding transparency and its infusion of domestic industrial policy into the competition analysis, has become the “brave new world” with respect to the interaction between competition law and IP law. IP rights holders face a number of challenges in China, from competition agency investigations to standardization reform. This panel will explore these initiatives and examine the implications for RAND licensing. Our Committee will also have a joint committee meeting with the Antitrust Committee. Dina Kallay from Ericsson and Renata Hesse from DOJ will speak on IP-related antitrust issues in the U.S., China and other countries. David Long will moderate this joint committee meeting.

2016 Mid-Winter Institute: For the Mid-Winter Institute, our Committee is working with the ITC Committee on a program on litigation of standard essential patents in the ITC.

2016 Spring Meeting: A program on open source software has been proposed to the Programs Committee for the Spring Meeting. The proposal is for three panelists to address topics geared toward advising not only large company enterprises but also small companies and start-ups, including: (1) the value of proprietary code that includes open source software and how to safely incorporate and distribute open source licensed software without negatively impacting the company and its IP; (2) open source licenses and their potential impact on a company’s patent portfolio; and (3) practical tips for any company that is considering contributing to or starting its own open source project. The Committee is waiting to hear whether the program will be a plenary session or whether it will be a Committee CLE.

Plans for coordination between stated meetings: Our Committee holds either a monthly Committee conference call or, when there is an AIPLA general meeting, a face-to-face Committee meeting. During the monthly calls, members discuss ongoing projects and activities of the Committee and current standards and open source-related topics, within the U.S. and internationally. Our Open Source Subcommittee also holds monthly conference calls for those Committee members who want to discuss open source issues on a deeper level.

Plans for communication with the committee clusters/board liaisons: Our monthly Committee conference calls include liaison reports so that our Committee members may learn what other AIPLA committees are working on.

ADVOCACY: This calendar year, our Committee drafted four sets of comments, including: (1) to the European Commission regarding its request for comments on determining standard setting obligations, such as RAND; (2) to the Japan Fair Trade Commission regarding Partial Amendment of “Guidelines for the Use of Intellectual Property Under the Antimonopoly Act”; (3) to the Competition Bureau of Canada regarding its updated draft version of the Bureau’s Intellectual Property Enforcement Guidelines; and (4) to the People’s Republic of China National Development and Reform Commission regarding its questionnaire on issues related to competition and intellectual property. Our Committee shared proposals or worked in conjunction with various AIPLA Committees on these comments.

PUBLIC EDUCATION: Annually, in conjunction with the AIPLA Annual Meeting, our Committee has held a Partnering in Standards program with NIST for government agencies. This year, the Partnering program will focus on open source software, including issues the U.S. Government might encounter from a procurement standpoint and from a distribution standpoint. Members of our Open Source Software Subcommittee are working on putting together presentations for this event. MEMBER SERVICE: An important activity of the Committee is to report on relevant lawsuits, enforcement actions, government policies, regulations, legislation, and events both domestically and internationally that may be of interest to Committee members in the areas of standards and open source.

GLOBAL OUTREACH: Our Committee leadership attends the AIPLA Global Sector Leadership conference calls. On our Committee conference calls we discuss information on standards and open source issues in the EU, Japan, Canada, China, India and around the globe.

SUBCOMMITTEES: Standards: Jim Harlan (InterDigital) Open Source: Michael Atlass (Qualcomm), John Lyon (Thomas I Horstemeyer, LLP), and Cindy Huang (Carter, DeLuca, Farrell & Schmidt, LLP) Programs: Ken Frankel (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) and Bob Payne (Hoge Fenton Jones & Appel)