bhawkins: "FTC" & "Honestly" in same sentence!
Funny!
-- But yes, your point is a good one.
It's actually entirely legitimate that they consider these things. Standards-setting organizations and their behavior are, "honestly", quite a significant consideration, if you are trying to keep a market working effectively.
There is a degree of natural conflict between the patent concept, and both the goal of the act of standard-setting itself, and the profit goals of the members of such a group.
It's entirely legitimate that the FTC should “look at” this question.
What is NOT legitimate, though, is to ignore the realities and current legalities of the situation and actively persecute a company, especially as an active member of a conspiracy, as we've seen!
The fact that a patent-holder asks a reasonable license fee is not a legitimate reason for theft of their patent rights! (Just had to bang that drum again. Hard to stop!)
What they SHOULD be doing is proposing some method/set of rules for SSOs for the FUTURE, whereby BOTH: a) standards could be reasonably set, and b) patents fully respected.
How do you do that?
Seems to me that it must be up to the members to discover whether there might be patents in existence, or implied as possible extensions of patents in existence. If THEY are making the decisions of how to move forward, then it’s up to THEM to research these things! Why expect somebody to come forward and “declare” patents? That’s just nonsense. It’s entirely possible, though perhaps not likely, that the patent-holder is not even aware of the SSO or its current activities.
If the usage of any such patents found seemed likely to be required by the standard under consideration, why couldn’t they simply negotiate, AS A GROUP, with the patent-holder as part of the consideration preparatory to acceptance of the standard? Doesn’t sound like rocket science from here.
I’d guess that the reason is simply another manifestation of power politics: the guys with the big money write the rules. And, given the weakness of the current situation regarding how patents are prosecuted, they feel that they can get away with less-than-careful diligence in this regard.
So the FTC should consider that the ROOT of this problem is the LAXITY of current patent law and enforcement. Why should it be up to the patent-holder to prosecute infringement? Is it up to me to pursue the criminal if he robs me?
There should be an active arm of government, the duty of which is to prosecute patent infringement. AND, the penalties should ALWAYS include jail time.
Then, I think, you would see SSOs acting with a bit more discretion.
Best,
- Monty
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