VITA Adopts Ex Ante Policies

At Wednesday’s VSO meeting (1/17/07) in Long Beach, CA, voting members approved by overwhelming majority the proposed policy concerning Ex Ante patent disclosure.

The well-attended meeting was widely anticipated as the VITA Standards Organization (VSO) made good on the promise to “get tough on protecting its members’ interests”. At issue is the fact that standards bodies have been used in the past by less-than-forthright companies to create standards that utilize patented intellectual property – only the other participants don’t know it. Once the standard becomes ratified, then IP holders assert patents and can, at times, allegedly hold other companies “hostage” to onerous licensing and royalty fees.

VITA has a history of working hard on behalf of its members to “bust patents” that might harm its standards, its members and the overall VME ecosystem. With Ex Ante – which has the tacit approval of the Department of Justice and the Federal Trade Commission – VITA now has put some real teeth into forcing companies to be more forthright about their IP.

With a vote of 32 in favor, 2 “nays”, and 2 abstaining, Ex Ante is now VSO’s “rule of law”. (Disclosure: OpenSystems Publishing, publisher of VMENow.com, as well as VME and Critical Systems magazine, is a VITA sponsor. Editor Chris Ciufo voted “yes” in favor of Ex Ante.)

VITA’s Ex Ante procedures are somewhat historic in that they may represent the most aggressive set of rules ever used by a standards body to force IP disclosure. According to VITA executive director Ray Alderman, “I’m almost certain that I’ll get a call from the lawyers on this one…other standards bodies don’t like what we’re doing.” Sure enough, Ray indicated later in the day that he’s been summoned back to Washington DC on issues pertaining to this new policy. He surmised that “someone must’ve formally complained.” However, with extensive legal review, and the rulings from the DoJ and FTC, VITA is confident that Ex Ante will be upheld – though slight modifications are possible.

Later in the afternoon, Mercury Computer became the first company to follow the new procedures during an uneventful and typical working group session. Before beginning the meeting, Mercury read aloud the new boilerplate statement that warned everyone in attendance to disclose IP that might affect the standard under discussion. Mercury then identified some of their own key IP that might affect the VITA 48 (VPX-REDI) standard under development.

More detailed information about Ex Ante, as well as the formal procedures and documents now required by VITA, can be found here.

Editor Chris Ciufo reporting from Long Beach, CA.

Now that I am back in the office, it is time to clarify a few things from Chris’ blog posting

written by Ray Alderman, January 19, 2007

Since I don’t carry a laptop to B&B and VSO when I have a lot of logistical duties, I was getting my messages from others in attendance. After the VSO vote approved the new ex ante procedures, were verified by multiple vote counters, and officially recorded, our attorneys in Washington, DC and the VITA Board of Directors were immediately informed with an email by one of the VITA BOD members present (at my request). Additionally, our attorneys immediately informed ANSI counsel and the ExSC (Executive Standards Council of ANSI) about the VSO balloting results, and my attorneys submitted the required documentation in accordance with ANSI procedures and policies concerning “maintenance of accreditation”. A few moments later, I was informed of a request for a meeting with my attorneys, concerning an FTC/DOJ hearing being scheduled on this matter, and that my presence would be required at that hearing. I was informed this morning that the hearing is scheduled for 30 Jan 07. General counsel for many companies and standards developers (worldwide) will be attending those hearings. This is a legal matter in all respects, now that VITA and VSO have adopted these new procedures and put them in place. The VSO meetings operated under these new procedures on Wednesday and Thursday of this week after the ballot.

On Friday, 26 January 07, ANSI will officially inform the world standards community of our actions, publish our documents and required paperwork, and ask for public comment on our procedures. VITA’s adoption of ex ante procedures is the most significant change in patent policy in the history of standards development. As you can imagine, some companies and standards developers wish to keep the old rules in place, and they have legal concerns about our actions at VITA. This will attract both comments from dissenters and more attorneys at the DOJ/FTC hearings now scheduled for 30 Jan.

Since I am not under subpoena at this stage, I have engaged our Washington-based anti-trust attorneys to represent VITA at these hearings. I will not attend. This is a contentious legal issue at this point, and anything I might say at these hearings could be misinterpreted, taken out of context, or used against me and VITA. We are operating under ex ante procedures now, that were reviewed by the US Department of Justice. The DOJ gave us their favorable legal opinion in the BRL (Business Review Letter), concerning compliance with US anti-trust law, in October of 2006. The DOJ has worked closely with the US Federal Trade Commission (FTC) concerning our VITA ex ante procedures.

So, VITA/VSO is now operating under ex ante patent policies and procedures reviewed and evaluated by DOJ (and FTC). We have submitted our new policies and procedures to ANSI Counsel and the ExSC, in accordance with their requirements, for review and public comment. Legal objections to our ex ante policies and procedures will be handled by our VITA anti-trust attorneys (in Washington, DC), in association with DOJ/FTC. And yes, I will be heavily involved. But, our attorneys will speak for us at these hearings during this contentious period. As much as it pains me, I will remain silent…unless I am subpoenaed to testify. Should that happen, I will be represented by the best anti-trust lawyers in this country, and testify with their guidance using carefully measured words. I am confident that we will prevail during the ANSI review, the public review, and the legal review of any objections.

Ray Alderman

Executive Director

VITA