ISO Halts Processing of IEEE Standards in the Aftermath of its Patent Policy

Good news for those concerned about the integrity of international standards.  On March 24, 2023 the International Organization for Standardization (“ISO”) / International Electrotechnical Commission (“IEC”) JTC-1 Plenary in Vienna approved two important resolutions regarding IEEE standards that have been plagued by negative letters of assurance as a result of its 2015 patent policy. These resolutions prevent IEEE standards for which negative patent letters of assurance have been submitted, including most of the Wi-Fi standards amendments, from becoming ISO standards. They also validate the widespread concerns expressed by the US DOJ and others (including, effectively, ANSI) about the negative implications the 2015 IPR policy changes have had on IEEE standards.

Personally, this is very gratifying, especially after my many, repeated analyses on how the IEEE’s patent policy made no sense, only benefitted Big Tech, and was harmful to innovation.  As reported by Florian Mueller and others the IEEE updated, effective the beginning of this year, its patent policy, letters of assurance (LOA) form, and frequently asked questions (FAQ) document.  The edits touch on the twin questions of injunctions for SEP and what exactly constitutes a reasonable SEP royalty. The latest IEEE edits move it somewhat towards what is accepted as FRAND elsewhere in the world (i.e., closer to the pre-2015 policy) and make it more like ETSI’s IPR policy.

While an immediate problem was avoided with the ISO, the IEEE’s games were definitely heard and noticed by ISO.   The first approved resolution highlights the problem by asking for a report on the “current status of reviewing negative Letter of Assurance (LoA) issues related to the adoption of IEEE standards.” (P19).  The second approved resolution is more explicit in its concerns – as I highlighted in my linked articles above – about the danger of negative LoAs.  It requests that:

the ISO/[Central Secretariat] take the following considerations into account while working on the revision of the ISO/IEEE PSDO agreement

• When submitting standards for fast-tracking via the FDIS process, IEEE should inform ISO whether a standard proposed for adoption has one or more negative LoAs prior to  the initiation of balloting. ISO/CS should collaboratively work with IEEE on this issue.
• To prevent confusion among SC 6 members, IEEE standards with one or  more  negative  LoAs should not be initiated in the ISO fast track adoption process.

(p19).  This resolution incorporates many of the concerns regarding how the IEEE was tricking ISO into fast tracking IEEE standards to become ISO standards without alerting ISO to the fact that there were negative LoAs submitted to these standards.

The resolutions demonstrat that ISO took note of the resounding failure of the 2015 IEEE patent policy, and took the necessary steps to prevent the contamination of its standards by IEEE standards that are no longer F/RAND assured.

In doing that, ISO joins the American National Standards Institute (ANSI) that in 2019 refused to approve two IEEE Wi-Fi standards as American National Standards because they were plague with negative LOAs.  To save itself further humiliation, in June 2018 IEEE withdraw the American National Standards status of most of its standards (see page 28 onwards of this notice).

Now a pariah at both ANSI and ISO, I hope someone at IEEE will wake up, let alone given its longtime aspirations to be considered an international standards development organization.