[CMC Alert] CMC SPECIAL TELECON - Standardization of Patented
Technologies
Kearney, Mike W. (MSFC-EO01)
mike.kearney at nasa.gov
Thu Feb 10 13:33:26 EST 2011
Dear Juan,
Ø it would be good to know how ISO deals with patents that
Ø are approved in say only one country with respect to those that are
Ø approved in several countries;
I have sent that question to ISO.
Concerning the topic of whether CCSDS focuses only on benefits to the missions of (a) the CCSDS space agencies, (b) CCSDS plus ISO SC13 participants, or (c) all spaceflight efforts worldwide, I think it is important for us to come to agreement on what the intended goals of CCSDS/SC13 are. And once we come to agreement, clarify the text (charter, procedures manual) so that we have a consistent, permanent understanding.
(for the benefit of those who were not in the telecon this morning) We had this discussion and several agencies made points about the minimum CCSDS user base being not only CCSDS participants but also ISO participants (since CCSDS standards become ISO standards). And some agencies (NASA included) made points that the CCSDS goal was to enhance spaceflight efforts worldwide. I think we came to a consensus that the scope of our group is at least CCSDS *and* the ISO community, but the question about whether the scope was worldwide needs further discussion.
Looking at the CCSDS Charter (which is above the procedures manual):
http://public.ccsds.org/about/charter.aspx
Ø provides the maximum benefit for the interested agencies, both individually and collectively,
That is a bit ambiguous as to whether the “interested agencies” are only the CCSDS agencies or any agency that is interested in using our standards. It could be interpreted as “interested in developing” (11 Agencies) or “interested in using” (worldwide).
Ø 5. to promote the application of the Recommendations within the space mission community
That statement clearly addresses the space mission community beyond the agencies of the CCSDS.
Ultimately, as I mentioned in this discussion, this decision is needed for us to interpret “non-discriminatory”. If “non discriminatory” applies only to participating agencies, then a patent for only “CCSDS agencies” is OK. If it applies worldwide, then “only for CCSDS agencies” does not meet the requirement for non-discriminatory.
I have spent some time researching the ISO website. I could not find a direct answer to the question about whether ISO standards are intended for the usage of only those organizations that *develop* ISO standards, or also for “everyone else”. However, reading the material on that website, I concluded that the question is not directly answered because it is considered obvious… ISO standards are intended for more than the organizations that develop the standards. They are intended to be used worldwide, government and commercial, and by organizations that are not part of the development of ISO standards. I believe that if ISO had a proposal to standardize a patented technology that was RAND (Reasonable and non-discriminatory) for ISO standards-developers, and not RAND for others, it would reject that standard. I would consider trying to ask ISO if that is the case, but I think it is so implicit in the ISO charter as to be obvious, and I would try their patience (I may already be doing that).
Some info from the ISO website:
What's the bottom line on ISO? ISO's work makes a positive difference to the world we live in. ISO standards add value to all types of business operations. They contribute to making the development, manufacturing and supply of products and services more efficient, safer and cleaner. They make trade between countries easier and fairer.
ISO standards distil an international consensus from the broadest possible base of stakeholder groups. Expert input comes from those closest to the needs for the standards and also to the results of implementing them. In this way, although voluntary, ISO standards are widely respected and accepted by public and private sectors internationally.
My conclusion is this: We want our standards to be used by any space mission (not just CCSDS agency missions). We want this for the same reason that ISO wants it – the broadest possible base of stakeholders, the broadest possible chance of future interoperability with all entities (including those that are not currently CCSDS standards developers). Therefore our procedures to reject discriminatory policies by patent holders must include rejecting those that discriminate against anyone, not only against CCSDS agencies. Our RAND policy must apply to all users, not just CCSDS agency mission users.
If our charter and procedures don’t reflect that by using terminology like “participating agencies”, then we should revise the text.
Having said all that… ISO has approved some technologies (like MPEG) which are royalty-free for non commercial uses, but have a reasonable license fee for commercial users. It is RAND for all, but the RAND terms are different for commercial users. So those “RAND but not always equal” licensing terms would be allowable for CCSDS to adopt, as far as ISO is concerned.
Once again, sorry for the long email.
-=- Mike
Mike Kearney
NASA MSFC EO-01
256-544-2029
-----Original Message-----
From: Juan.Miro at esa.int [mailto:Juan.Miro at esa.int]
Sent: Thursday, February 10, 2011 5:50 AM
To: Kearney, Mike W. (MSFC-EO01)
Cc: CMC-exec at mailman.ccsds.org; cmc-exec-bounces at mailman.ccsds.org
Subject: Re: [CMC Alert] CMC SPECIAL TELECON - Standardization of Patented Technologies
Dear Mike and dear all,
here is ESA feedback on your questions regarding the overall policy to deal with patented technologies for discussion at today's videoconf; I am however not returning your presentation with the ESA proposals on the individual issues, because I believe that we first have to agree on the overall policy, and then the questions you pose may be straight forward to answer or vanish altogether.
Issue (1) CCSDS/ISO process for standardizing patented technologies;
the proposed approach to adopt the ISO procedure for addressing
standardisation initiatives where there are patents involved is generally
accepted
in your reflection you are however not covering the geographical aspects,
which are important, since the patents are normally established on a
country basis; it would be good to know how ISO deals with patents that
are approved in say only one country with respect to those that are
approved in several countries;
it is understood that at the start of the work, i.e. when an item is
selected as the best candidate (or as one of the best ones) for
adoption/standardization. by CCSDS, where a patent is involved, a
principle agreement to provide licenses in a reasonable and
non-discriminatory manner has to be given by the owner of the patent; to
this effect, CCSDS will invite the patent holder to sign an ISO form,
i.e. the "Patent and License Declaration Form".
There is no further involvement nor responsibility of the CCSDS
organisation in the precise definition of the license nor in the licensing
process which does not need to be completed in time neither to start
developing nor to issue the std.
In particular, once the form has been signed, there is no obligation of
the CMC to get additional assurances from the licensor neither to request
disclosure of the proposed terms of the license
For the current CCSDS process to publish/adopt coding standards (LDPC,
SCCC /, DVB-S), which involve patented technologies, the process must be
engaged now by asking the patent holders to sign the above form
this shall imply the CCSDS organisation (represented by CMC) to request
Intellectual Ventures to sign such a form for the US patent claiming to
affect SCCC
also Caltech shall sign the form for the patent related to LDPC
and also ESA shall sign the form for the patent relative to SCCC
The use of CCSDS standards outside the CCSDS community should be seen as
nice to have as it extends their usage beyond our core business. The CCSDS
Procedures Manual says:
The primary products of the CCSDS are technical Recommendations that guide
internal developments of compatible standards within each participating
space Agency. It is believed that the CCSDS activities will significantly
enhance the planning and execution of future cooperative space missions.
An intrinsic contribution of the CCSDS Recommendations is the expected
higher degree of interoperability among Agencies that observe the
Recommendations.
Hence, ‘Space Missions’ are clearly those missions of the CCSDS
members.Likewise, the same Procedures Manual says:
2.2 CCSDS STAKEHOLDERS
CCSDS Stakeholders belong to the following broad categories:
a) ‘Space Mission’ organizations that directly execute
scientific and applications space missions, or ‘Space Mission
Support Infrastructure Provider’ organizations that design, operate
and maintain the worldwide tracking, data acquisition, mission
control, data processing, and data archiving networks that are
exposed to Space Mission organizations for the purposes of ‘cross
support’.
b) ‘Space Data User’ organizations representing the utilization
community who consume the information generated by the Space
Mission.
In other words, the stakeholders are the CCSDS member agencies. If a
license can be obtained on a fair and non-discriminatory basis for
non-commercial use, i.e. for the CCSDS members, the objective is met. If
the license owner is also willing to deliver licenses for commercial
applications, it is better but should not be considered mandatory. Note
that this is the rule that was applied for the Turbo Codes patent as well
as for the LDPC patent, and it was accepted by CESG in both cases.
Issue (2) the potential for CCSDS personnel to be in real or perceived
Conflict Of Interest (COI) situations when making decisions about the international standardization of technologies that are covered by patents
ESA does not consider this to be an issue; we do not see the need to
develop "new ethical rules ... to guide CCSDS decision-makers concerning
their fiduciary duties ...". We trust that decision-makers as delegates of
their home institutions are bound by the code of ethics at their home
institutions.
The members of the CMC are not elected Ad Personam; they are delegates of
their organisations and as such they are representing their organisation
in the CMC, which implies by default that they are defending the interests
of their organisations. These interests include among others are to
establish useful international standards which are seen as of benefit to
the organisation. The member organisations subscribe to some well
established procedures, that are balanced and fair to everyone.
In the particular case of ESA, we are a non-profit, intergovernmental,
civil servant organisation, and therefore there are no lucrative or
commercial interests associated with our patents
Regards,
Juan Miro
Head Ground Systems Engineering Department European Space Agency
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|[CMC Alert] CMC SPECIAL TELECON - Standardization of Patented Technologies |
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Dear CMC Members: I apologize in advance for this long email, but we have some complex issues that need CMC attention very soon.
MANAGEMENT SUMMARY – CCSDS Issues have arisen concerning:
(1) CCSDS/ISO process for standardizing patented technologies;
(2) the potential for CCSDS personnel to be in real or perceived
Conflict Of Interest (COI) situations when making decisions about the
international standardization of technologies that are covered by
patents.
We discussed (1) in our London meeting in the context of current CCSDS Channel Coding issues. In subsequent discussions, it has become apparent that issue (2) must be addressed as we make decisions on (1). For both of these issues, management decisions must be made by the CMC before the CCSDS teams can take further action.
This is a time-critical discussion because it may hold up work on all three candidates for new channel coding standards which are encumbered by patents.
Therefore I propose that we schedule a special CMC telecon, dedicated to this topic, at 12:00 UTC on 10 February 2011. (Reminder – we have a general CMC telecon scheduled for 5/6 April 2011). I will send out an Outlook calendar item very soon, with logistical details (phone and WebEx information).
DETAILS:
The objective of the teleconference is to conduct CMC discussions and decisions concerning the standardization of patented technology. Generally, this has not been an issue for CCSDS in the past – the only previous instance that I am aware of was the adoption of Turbo Codes in the Channel Coding and Synchronization Blue Book (circa 1999), which required negotiation of a license from France Telecom. However, that occurred well before the new procedures that were adopted during the CCSDS restructuring in 2004.
As you will no doubt remember from the CMC (and IOAG) meetings in London, we are now facing three new instances where technologies that are protected by patents are being proposed for international standardization: these are (a) Low Density Parity Check (LDPC) coding; (b) Serial Concatenated Convolutional Coding (SCCC), and; (c) the Digital Video Broadcasting (DVB-S) standard. At the November meeting, ESA raised the SCCC patent issue by requesting a CMC vote to advance the SCCC document to Agency review without considering a need for advance review of a licensing agreement for its operational use.
Secretariat research has revealed that since we forward our standards track documents to ISO as SC13 documents, we must comply with ISO guidelines for standardizing patented technology. These guidelines are attached in PDF form. The bottom line requirement of their process is that CCSDS/SC13 needs to submit a ISO Licensing Declaration Form (also attached in DOC form) for each patent that encumbers a CCSDS Recommended Standard that is advanced to
ISO. The joint patent policy of ISO, IEC and ITU is available at:
http://isotc.iso.org/livelink/livelink/fetch/2000/2122/3770791/customview.html?func=ll&objId=3770791&objAction=browse
.
ISO’s legal office has stated quite clearly that SC13 is required to follow those guidelines, and to submit the license declaration form when needed.
This is requested by ISO “early in the standards development process”, so we are already very late on this for some of the new candidate channel codes.
Note that current CCSDS rules require that licenses must be demonstrated to be “fair and non-discriminatory”: instead of “fair and non-discriminatory”, ISO uses “reasonable and non-discriminatory”. CCSDS may want to consider changing to that definition, since SC13 is apparently already bound by those terms.
The main issue here is the universal requirement that the patent holder must be willing to negotiate licenses on a non-discriminatory basis, either free or on reasonable terms and conditions. (Note that CCSDS already has this requirement in its operating procedures.) Clearly, the CMC will need to determine whether or not these conditions will be met by each proposed licensor, and it is here that interpretation may be difficult. Some proposed licenses have statements to the effect that royalty-free use will be granted for the “peaceful, scientific and non-commercial exploration of space”.
However, they are mute in terms of whether a license will be granted to other users (such as military applications, commercial space operators or the industrial supplier community) and if so what the terms will be. Since CCSDS has Observers and Associates as part of the organization who may fall into the latter categories, does the CMC have an obligation to get an assurance from the licensor that a license will be granted to all users on non-discriminatory basis, and also to require disclosure of the proposed terms of the license to the CMC so that we can be sure that they will be “reasonable”? For instance, if a license would be granted “free” to a CCSDS Member agency for space exploration use, but a military Observer agency or commercial Associate would be charged a very large fee (or even refused), would that be “fair and non-discriminatory”?
Moving on to issue (2), in the process of researching the SCCC patent issue in terms of CCSDS procedures, the Secretariat noted that all three codes are encumbered by Intellectual Property (IP) claims. The basic situation is that:
• Caltech ( which manages JPL) owns a patent related to the LDPC
codes
• Caltech owns a patent related to the SCCC codes and has assigned
its rights to a 3rd party
• ESA owns two patents related to the SCCC
• Those same two ESA patents are also a part of the DVB-S patent
pool
By adopting any or all of these candidate technologies as CCSDS/ISO standards, it is likely that the “value” of those patents will grow and therefore the potential monetary return from licenses may be increased. It is therefore important that CCSDS should use the most thorough and impartial processes to reach standardization decisions.
Clearly, making the “fair/reasonable and non-discriminatory” determination requires professional judgment from CESG and CMC members. Since ESA and Caltech own IP rights associated with the candidate codes, it is conceivable that some members of the CESG and the CMC may appear to have a Conflict-Of-Interest (COI) between their duties as CCSDS decision-makers and the financial interests of their employers. In this case, the CMC should review the professional implications of this situation and determine if new ethical rules should be developed to guide CCSDS decision-makers concerning their fiduciary duties to CCSDS and ISO when making determinations about the “fair and non-discriminatory” terms of proposed licenses.
In the process of resolving these issues for the new CCSDS channel codes, it is strongly recommended that the CMC should use this as a test-case for establishing a permanent CCSDS policy that governs (a) any additional CCSDS requirements associated with the standardization of patented technology and
(b) how potential conflicts of interest will be declared and resolved.
CONCLUSION:
Those are the issues that we need to discuss during the proposed telecon. If you have strong or critical interest in the topic, I encourage you to “reply all” to this email with your position, in advance of the telecon, so that the
telecon can be productive. I will prepare a presentation for the telecon
that hits on the above points and tries to focus us on the necessary decisions.
Best Regards,
-=- Mike
Mike Kearney
CCSDS Chairman and General Secretary
www.ccsds.org
(Embedded image moved to file: pic00387.jpg)cid:3303993661_5210558
****************
Mail Code EO-01
NASA Marshall Space Flight Center
Huntsville, Alabama 35803, USA
+1-256-544-2029
Mike.Kearney at nasa.gov
(See attached file: ISO-IEC-ITU guideline on Patent policy- Common_Guidelines_01_March_07.pdf)(See attached file:
ITU_ISO_IEC_Patent_Statement_and_Licensing_Declaration_Form.doc)
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