New European Telecommunications Standards Institute rules on intellectual property rights have done little to defuse the row between with the US Computer & Business Equipment Manufacturers Association, and may even have made matters worse: CBEMA member IBM Corp is flatly refusing to comply, and AT&T Co and Digital Equipment Corp are also believed to be deeply unhappy with the situation. The latest twist in the saga occurred at European body’s 17th General Assembly, when it approved framework principles for its Intellectual Property Rights Policy and Undertaking. Essentially a ‘carrot and stick’ refinement of its earlier position, these principles reserve the right of companies to withhold rights to their intellectual property, but state that members and signatories must give warning of their intentions within 180 days of work item’s formal approval. Any member refusing to submit the undertaking will either be expelled from European Telecommunications Standards Institute or demoted to observer status. Other than this modification, the existing Institute requirement that members sign an undertaking to license intellectual property under reasonable and non-discriminatory conditions if they are to be used as the basis of a European Telecommunications standard remains. If the changes were intended as a conciliatory move towards CBEMA it has failed. It sounds good in theory, but it isn’t going to change our minds, says a CBEMA spokeswoman. Its prima facie objection is that 180 days is not enough time for a company to conduct thorough patent searches. It’s impractical for a company to track 12,000 groups examining who knows what about how many different systems, says CBEMA.

Scuppering standards

IBM adds that ETSI is not in a position to provide sufficient detail within 180 days for us to tell whether we own a patent that could be deemed essential to a standard. Beyond this lies a fundamental objection to the Institute’s methodology. The Institute is turning on its head the basic principles of intellectual property, says IBM. The company says that normal intellectual property rights procedures place emphasis on the individual to ensure that patents are not infringed, whereas the Institute is shifting the onus to the patent holder. This, says IBM, is contrary to the way that other bodies like the Consultative Committee on International Telephony & Telegraphy and the International Standards Organisation operate. IBM is not in a position to sign the undertaking as it is currently written, it says. CBEMA is continuing with its complaint to the European Commission under Articles 85 and 86 of the Treaty of Rome, which cover restrictive trade practices and abuse of a dominant position. However the European Institute says it has been discussing its proposed policy with the Commission for about a year and thinks it will be OK. It is continuing to draft amendments to its Statutes and Rules of Procedure to create a legal framework for the Intellectual Property Rights Policy and Undertaking – due for completion on October 15 – and expects to complete the process by February 1994. ETSI deputy director Frede Ask appears unfazed by the prospect of many heavyweight US manufacturers boycotting the Institute. He maintains that the Institute’s measures – which he claims were supported by 88% of the General Assembly – are intended to reduce the risk of intellectual property rights holders scuppering standards at a late stage of their development. We don’t like to see working groups spending years developing standards, only to have to redesign them at the last minute to avoid withheld intellectual property rights, he says, adding that such actions cause delays and add costs to the standards process. IBM rebuts this statement, saying that all the other standards bodies with which it is involved have never had to face such problems. The European Institute counterclaims that while this may be the case, one insures one’s house not because it will catch on fire, but because hypothetically it could. If the Institute is taking an agg

ressive stance, the CBEMA camp is just as resolute. We are in earnest in pursuing our claims in court, says a spokeswoman and know that some of our members just will not sign the Undertaking. IBM says that it hopes there will be a way for it to continue as a member of the Institute, but the areas for compromise seem non-existent.