Diversity in standards development: A response to Katznelson

In his article Perilous Deviations From FRAND Harmony-Operational Pitfalls of the 2015 IEEE Patent Policy, Ron Katznelson discusses the development of the 2015 updates to the patent policy contained in the IEEE Standards Association By-Laws, and predicts "Operational pitfalls" involving supposed difficulties involving incorporation by reference of IEEE-SA standards created under the updated policy. In my response, I provide a different perspective on what led IEEE-SA to adopt the updated patent policy. Specifically, I discuss how the policy updates respond to concerns that innovative companies involved in standards development at IEEE-SA and elsewhere have based on their real-world experiences in licensing patents claimed to be essential to implement standards such as Wi-Fi (IEEE 802.11) and Ethernet (IEEE 802.3). I also explain why Mr. Katznelson's prediction that the updated By-Laws will cause other standards development organizations to decline to incorporate IEEE-SA standards by reference are imaginary and inconsistent with widespread incorporation by reference that happens today between standards created under RAND models and standards created under royalty-free models. Finally, I show that Mr. Katznelson's concerns with the IEEE-SA's updates reflect a discomfort with the idea that standards development organizations should be free to experiment with diverse models for access by implementers of standards to patented inventions essential to implement standards and made available for license by participants in standards development. Far from being something that we should fear, experimentation and diversity with different patent licensing models, like diversity in other aspects of standards development, benefit participants in standards development, implementers of standards, and consumers that purchase products that implement standards.