Two Approaches to Handling Late Essential/Necessary Patent Claims Against Standards

The author considers the question: what if a member of an IEEE SA Working Group either has a granted or pending essential patent (or personally knows that his/her employer owns such a patent), and keeps that information secret despite the regular "calls for essential patents" made at the start of each Working Group meeting? The brief answer in the IEEEs case is that such deviant behavior is grounds for suspension or expulsion from the IEEE-SA for an individual, a representative of an entity or the entity itself depending on how widespread the deception itself. The case can also be referred by PatCom with a recommendation to the IEEE Standards Association Standards Board for appropriate action. Si2, another standards setting organization (SSO), has a different way of handling such a case, which the author describes using a flow chart of its patent policy flow. It is seen that any Si2 member that tried to subvert the system by not disclosing an necessary patent claim until after an Si2 standard was approved and published, will have necessary already agreed to issue a "Reasonable and Nondiscriminatory" (RAND) license on the necessary patents.