Silviase/jgov_v1.4_full_ann huggingface dataset:
### 1. Basic policy

The underlying philosophies of standardization and IPR-protection are opposites. Standardization is intended to put ideas into the public domain, whereas protection of IPR makes them private property. Therefore, any use of IPR by a standard is an anomaly, sometimes an unavoidable one, which needs careful management.

The practice followed by CEN and CENELEC concerning references to patented items in European standards is closely aligned with the rules developed by ISO and IEC, as follows:

If in exceptional cases, technical reasons justify the preparation of a European Standard in terms which include the use of a patented item, there is no objection in principle to such a step, even if the terms are such that there are no alternative means of compliance. In such a case, the following procedures shall be complied with:

a) CEN and CENELEC cannot give authoritative or comprehensive information about evidence, validity and scope of patent and like rights but it is desirable that the fullest available information be disclosed. Therefore, the originator of a proposal of such a kind shall draw attention to any known patent and like rights on a worldwide basis or any known pending applications, although CEN and CENELEC are not in a position to guarantee the authority of any such information.

b) If the proposal is accepted on technical grounds, any known patent holder shall be asked for a statement that he would be willing to negotiate licences under patent and like rights with applicants throughout the world on reasonable terms and conditions. A record on a patent holder's statement shall be placed in the files of CEN or CENELEC (as appropriate) and shall be referred to in the relevant European Standard. If the patent holder does not provide such a statement, the technical body responsible shall not proceed with the inclusion of the patented item.

c) Should it be revealed after publication of the European Standard that licences under a patent and like rights cannot be obtained under reasonable terms and conditions, the European Standard shall be referred back to the technical body responsible for further consideration.

### 2. Initial steps

If any person or organization involved in a standards project under study in a technical body of CEN or CENELEC becomes aware that there is a possibility of conflict between the draft and any patent or like rights (hereinafter: IPR), it is his responsibility to raise the matter with the responsible chairman and/or secretary, at the earliest possible stage. Receipt of such information signals the start of an investigation aimed at finding a way to re-write the draft standard so that it does not conflict with any IPR.
For example, it has in the past been found possible to avoid such conflicts by concentrating on performance (i.e. what a product or system must do) rather than description (i.e. how it should be designed). Such a standard allows many solutions, one or more of which may be subject to IPR, but does not in any way conflict with those IPR. During this informal investigation, advice is available from the 'IPR Task Force' which will, over time, develop a body of precedent and experience which will be available as advice to those facing IPR questions.

### 3. Reference to patented items

If, after comprehensive consultation and investigation, it proves impossible (short of abandoning the project) to avoid conflict with IPR, the basic policy (see clause 1) shall be applied.

It is again emphasized that preparation of a standard in such terms that compliance requires the use of an item (product, system or whatever) covered by IPR should be contemplated only in exceptional cases. In such cases, it is clear that neither CEN nor CENELEC can give authoritative information above the validity or scope of IPR - that is a matter ultimately for juridical decision. However, there is an obligation on anyone involved in standards work who is aware of potential conflicts with IPR to disclose the full facts.

Failure to make such a disclosure would be regarded as a serious breach of faith with the voluntary standards organizations, who (lacking the knowledge and expertise to do so) are unable to 'police' infringements of this moral obligation.

If it is clear that there is a conflict between an envisaged standard and IPR, the holder of the IPR shall be contacted with an invitation to consider the possibility of waiving his rights. The form of this waiver will depend on the jurisdiction(s) under which they are registered, and the Task Force may be able to assist with information about precedents in similar cases.

Failing an offer by the IPR-holder to waive his rights, an attempt should be made to encourage him to make an irrevocable statement that he is prepared to grant licences on a nondiscriminatory basis and on fair and reasonable terms. In this negotiation, the IPR-holder should be made aware of the possibility of receiving increased revenue from licence fees as a trade off for his loss of monopoly.

Again the Task Force may be able to help with appropriate wordings to ensure that there is no discrimination (including selective delay) over granting of licences of right, but decisions about 'fair and reasonable terms' will be more difficult. While such decisions are ultimately for an appropriate court, the Task Force may be able to offer advice on the basis of precedent.

Only after completion of any necessary negotiations with IPR-holder will it be possible for the draft standard to be submitted to public enquiry, at which stage it must be accompanied by a statement about the existence of IPR, together with information about the waiving or nondiscriminatory licensing of such IPR. It will be made clear that comments on the IPR implications of the draft,
including the 'fair and reasonable' terms offered by the IPR-holder, are solicited.

Further considerations of the standards project by the technical body responsible will be necessary:

• if the IPR-holder is unwilling to waive his rights or to give an undertaking to grant licenses without discrimination and on fair and reasonable terms;

• if comments arising during the public enquiry stage cannot be resolved by negotiation with the help of the Task Force;

• if, despite all the precautions outlined above, it becomes evident after the public enquiry stage that there is a conflict between standardization and IPR.

Such further consideration, assisted if necessary by advice from the Task Force, shall take as its starting point the suspension of further work on the project or (in the worst case) immediate withdrawal of a published standard. While alternative courses of action are not ruled out, they will be taken only when the technical body responsible is completely satisfied that appropriate measures have been taken to resolve every residual inequity.

### 4. Administrative measures

Every case of potential or actual conflict between standardization and IPR arising in a technical body of CEN or CENELEC shall be notified to the Task Force. Each case shall be the subject of a separate dossier, retained as a formal record by the Task Force secretariat, available for inspection by legitimate interests on request with reasonable notice. In cases of waivers and undertakings to license, the existence of the dossier shall be referred to in the standard concerned.

Clearly, the prescriptions set out above, while completely consistent with the ISO/IEC Directives, involve a slightly more systematic approach to IPR questions. It will therefore be necessary to establish close contact between ISO and CEN, and between IEC and CENELEC, particularly in cases where an international standard involving IPR is being considered for endorsement as a European standard.

### 5. Summary

Rules for standardizers faced with conflict with patents and like rights (IPR):

Rule 1. Don't get caught in a conflict between standardization and IPR!

Rule 2. Recognize that exclusive exploitation of IPR is inconsistent with mandatory reference to IPR-protected items.

Rule 3. Protect the users of standards in which IPR-protected material is included against discriminatory, unfair or unreasonable terms.

Rule 4. In every case of potential or actual conflict between standardization and IPR, protect yourself and protect CEN and CENELEC by communicating what you know to the officers of the technical body in which you are working.
X. ETSI Guide on Intellectual Property Rights (IPRs) $ ^{*} $

(As approved by the ETSI Board #48 on 1 September 2004)

© European Telecommunications Standards Institute 2004. All right reserved. Further use, modification, redistribution is strictly prohibited. ETSI Guide on IPRs is available from

http://www.etsi.org/legal/home.htm

## Background

The ETSI IPR Policy was adopted by the 21st General Assembly on 23 November 1994 and incorporated in the ETSI Directives as Annex 6 to the ETSI Rules of Procedure.

At a later stage a Technical Body Chairman’s Guide on IPRs had been written to help Chairmen and others involved in ETSI's standardization activities to understand and implement the Institute's IPR Policy. That Chairman's Guide on IPR had not been endorsed by the General Assembly or the Board and therefore did not have the same official status as the ETSI Statutes, the Rules of Procedure or the Technical Working procedures. The Technical Body Chairman's Guide on IPRs is now replaced by the present ETSI Guide on IPRs.

In 2002 the ETSI General Assembly #40 identified the need to review the ETSI IPR Policy with a view to addressing and rectifying any uncertainties on the operation of this Policy and on any legal rules and obligations on the membership in order to avoid an incorrect implementation of the ETSI IPR Policy and in order to avoid anti-competitive actions. An ad-hoc IPR group, with a clear mandate to review the implementation of the IPR Policy but not to change the Policy itself, was consequently created and 30 recommendations on the operation of the ETSI IPR Policy were approved by the ETSI General Assembly #42. The present ETSI Guide on IPRs embodies most of these recommendations.

## Foreword

Intellectual property plays an important role in standardization, especially in the telecommunications and electronic communications sector. In that context, the likelihood of having Intellectual Property Rights (IPRs) incorporated into ETSI Deliverables became critical after a few years of existence of ETSI. This tension (proprietary nature of IPRs versus wide dissemination of standards) was minimized with the adoption by the ETSI Membership of the ETSI IPR Policy as found in Annex 6 to the ETSI Rules of Procedure.

In the preparation of standards, IPR issues may arise. It is important for all parties involved in the ETSI standards-making process to be aware of their responsibilities and that there is good co-operation between all parties.

This guide is intended to help ETSI Members and any other party involved in ETSI's standardization activities (e.g. Members, Technical Body Chairmen, Secretariat, etc.) to understand and implement the
## I nstitute's IPR Policy

This guide provides explanatory information on how to handle IPR matters in ETSI and does not replace the ETSI IPR Policy which takes precedence in all cases.

This guide has been endorsed by the Board but does not have the same official status as the Statutes, the Rules of Procedure or the Technical Working Procedures.

Should you (the reader) have any difficulty with provisions of this guide or with any practical aspects of the Policy which are not answered by this guide, please do not hesitate to contact the ETSI Secretariat (hereafter called simply "Secretariat").

## 1 The ETSI IPR Policy

### 1.1 What is the Purpose of the IPR Policy?

The purpose of the ETSI IPR Policy is to facilitate the standards making process within ETSI. In complying with the Policy the Technical Bodies should not become involved in legal discussion on IPR matters. The main characteristics of the Policy can be simplified as follows:

• Members are fully entitled to hold and benefit from any IPRs which they may own, including the right to refuse the granting of licenses.

• Standards and Technical Specifications shall be based on solutions which best meet the technical objectives of ETSI.

• In achieving this objective, the ETSI IPR Policy seeks a balance between the needs of standardization for public use in the field of telecommunications and the rights of the owners of IPRs.

- The IPR Policy seeks to reduce the risk that investment in the preparation, adoption and application of standards could be wasted as a result of an Essential IPR for a standard or technical specification being unavailable.

Therefore, the knowledge of the existence of Essential IPRs is required as early as possible within the standards making process, especially in the case where licenses are not available under fair, reasonable and non-discriminatory (FRAND) terms and conditions.

The ETSI IPR Policy defines the rights and obligations for ETSI as an Institute, for its Members and for the Secretariat.
The Policy is intended to ensure that IPRs are identified in sufficient time to avoid wasting effort on the elaboration of a Deliverable which could subsequently be blocked by an Essential IPR.

### 1.2 Where can I find the ETSI IPR Policy?

The ETSI IPR Policy is part of the ETSI Directives and can be found in Annex 6 of the ETSI Rules of Procedures (http://www.etsi.org/legal/home.htm). This means that the rights and obligations specified by the IPR Policy are an integral part of the ETSI Rules of Procedure and are binding on all ETSI Members.

You can also find a copy of the Policy at Annex A.

### 1.3 Terminology

The ETSI IPR Policy defines a number of terms; those used in this guide correspond to those used in the Policy.

In the ETSI IPR Policy:

an IPR includes:

. COPYRIGHT

. PATENT

. UTILITY MODEL

. REGISTERED DESIGN

.... and applications thereof.

an IPR does not include:

. TRADEMARKS

. TRADE SECRETS

. CONFIDENTIAL INFORMATION

. RIGHTS RELATING TO GET-UP (packaging)

1.4 Rights and obligations deriving from the IPR Policy
The ETSI IPR POLICY defines rights and obligations for ETSI as an Institute, for its Members and for the Secretariat. Non-Members of ETSI also have certain rights under the Policy but do not have legal obligations.

The following table intends to give a clear overview of the most important rights and obligations of the Institute, the Members, the Secretariat and the rights of third parties as specified under the ETSI IPR Policy. All references below which are in italics relate to the ETSI IPR Policy.
Obligations	Rights
Institute	. to inform users of standards about Essential IPRs declared and ensure that this information is publicly available (clause 7). . to perform IPR searches if the EC and/or EFTA so require and reasonable expenses are met (clause 6.2). . to grant licenses on ETSI-owned IPRs (other than copyright) on fair, reasonable and non-discriminatory terms and conditions to third parties, free of charge to ETSI Members (clause 9.3). . to respect confidential information within a Technical Body until publication of the relevant Deliverable. . to include the information in a standard (clause 10).
Members	. to inform ETSI about their own, and other people's Essential IPRs (clause 4.1). . owners of Essential IPRs are requested to undertake to grant licenses on fair, reasonable and non-discriminatory terms and conditions (clause 6.1). . owners of Essential IPRs who refuse to grant license when no alternative is available, are requested to reconsider their position and provide the Director-General with a justification	. no obligation to conduct IPR searches (clause 4.2). . to refuse the inclusion of own IPRs in standards (clauses 8.1 and 8.2). . to be granted licenses on fair, reasonable and non-discriminatory terms and conditions in respect of a standard (clause 6.1). to make copies of standards documentation (clause 11) free of charge.. to use IPRs owned by ETSI free of charge (clause 9.3).
(clause 8.1). . . . . . to abstain from claiming copyright on standards documentation (text, graphics etc., of the standard itself) on behalf of the member itself and its employees (clause 9.1).	to have confidential information within a Technical Body respected until publication of the relevant Deliverable (clause 10).
Secretariat	. the Director-General to contact owners of Essential IPRs having refused to grant licenses on behalf of ETSI (clauses 8.1 and 8.2). . the Director-General to request the owner of an Essential IPR to give within three months an undertaking in writing that it is prepared to grant licenses (clause 6.1).
Third Parties	. the ETSI IPR Policy is only binding on ETSI Members. Third parties do not have any legal OBLIGATIONS under the Policy. . when ETSI is informed that an IPR belonging to a non-Member could be essential for a standard, the non-Member owner is also requested to undertake to grant licenses on fair, reasonable and non-discriminatory terms and conditions (clause 6.1).	. Third parties have certain RIGHTS under the ETSI IPR Policy either as owners of Essential IPRs or as users of ETSI standards or documentation: o to refuse the inclusion of their own Essential IPRs in ETSI Deliverables (clause 8.1 and 8.2). o To be granted licenses on fair, reasonable and non-discriminatory terms and conditions in respect of a standard at least to manufacture, sell, lease, repair, use and operate, (clause 6.1) o to be granted licenses for ETSI owned IPRs (other than copyright in the standard documentation)
(clause 9.3) on fair, reasonable and non-discriminatory terms and conditions.
o to have confidential information within a Technical Body respected until publication of the relevant Deliverable (clause 10).

### 1.5 “Essential” IPRs

Clause 15.6 of the ETSI IPR Policy gives the following definition of essentiality:

“15.6 ESSENTIAL as applied to IPR means that it is not possible on technical (but not commercial) grounds, taking into account normal technical practice and the state of the art generally available at the time of standardization, to make, sell, lease, otherwise dispose of, repair, use or operate EQUIPMENT or METHODS which comply with a STANDARD without infringing that IPR. For the avoidance of doubt in exceptional cases where a STANDARD can only be implemented by technical solutions, all of which are infringements of IPRs, all such IPRs shall be considered ESSENTIAL”.

In simpler terms, an "essential IPR" is an IPR which has been included within a standard and where it would be impossible to implement the standard without making use of this IPR. The only way to avoid the violation of this IPR in respect of the implementation of the standard is therefore to request a license from the owner.

## 2 Importance of timely disclosure of Essential IPRs

The main problems for ETSI as a standard body which may arise from "late disclosures" include:

. Licenses for Patents which have been disclosed late and are not available at all, or,

. Licenses for Patents which have been disclosed late and which are available, but not on Fair,

Reasonable and Non-Discriminatory (FRAND) terms, i.e. the company is unwilling to make a ‘FRAND’ undertaking/licensing declaration.

If the above problems cannot be satisfactorily resolved, then ETSI has to change the standard, which in some extreme cases could even include the need to start again with the development of that standard.

NOTE 1: Definitions for “Timeliness” or “Timely” cannot be agreed because such definitions would constitute a “change to the Policy”.

NOTE 2: The following description of Intentional Delay has been noted:

"Intentional Delay" has arisen when it can be demonstrated that an ETSI Member has
deliberately withheld IPR disclosures significantly beyond what would be expected from normal considerations of "Timeliness".

This description of ‘Intentional Delay’ should be interpreted in a way that is consistent with the current ETSI IPR Policy. In complying with the requirements of timeliness under section 4.1 of the IPR Policy, Members are recommended to make IPR disclosures at the earliest possible time following their becoming aware of IPRs which may be Essential.

NOTE 3: "Intentional Delay", where proven, should be treated as a breach of the IPR Policy (clause 14 of the ETSI IPR Policy) and can be sanctioned by the General Assembly.

### 2.1 Members Duties

#### 2.1.1 Responding to Calls for IPRs performed in Technical Body meetings

Members participating in Technical Bodies should respond at the earliest possible time to the Call for IPRs performed by Technical Body Chairmen at the beginning of each meeting, based on the working knowledge of their participants.

Furthermore, the call for IPRs acts as a reminder of the Member’s obligations under the IPR Policy and is performed to foster the timely disclosure of Essential IPRs.

Members having IPR portfolios should improve their internal IPR co-ordination processes to ensure, as far as possible, that their participants in Technical Bodies are aware of any alleged-essential IPR the company may have (related to the on-going work on a particular ETSI Standard or Technical Specification), that they understand their obligations, and that they know how to discharge them.

Members are encouraged to make general IPR undertakings/licensing declarations that they will make licenses available for all their IPRs under FRAND terms and conditions related to a specific standardization area and then, as soon as feasible, provide (or refine) detailed disclosures. This process reduces the risk of the standards making process being blocked due to IPR constraints.

#### 2.1.2 Use the ETSI IPR Information Statement and Licensing Declaration forms

The ETSI IPR Information Statement and Licensing Declaration forms should be used by any IPR holders wishing to make their disclosures and undertaking to ETSI.

A copy of the ETSI IPR Information Statement and Licensing Declaration Forms can be found at Annex B and online at: http://www.etsi.org/legal/IPR_database/IPRforms-V4.doc

These forms, once completed and duly signed should be returned to the ETSI Director-General.

Any questions related to the completion of the forms should be addressed to the ETSI Legal Advisor.
#### 2.1.3 Update and complete the ETSI IPR Information Statement form

Members are not obliged to inform ETSI of any updates to their essential IPRs. Nevertheless, Members are encouraged to update and complete their information statements in line with the forms (see Annex B). A minimum of information should be provided, which allows verifying the essentiality or the potential essentiality of an IPR.

#### 2.1.4 Copyrights in ETSI Deliverables

Members should be aware that once a technical proposal has been included into ETSI documentation the copyright is owned by ETSI, for the purpose of the publication of ETSI documentation.

### 2.2 Members do NOT have a duty to:

. conduct IPR searches (see clause 4.2 of the IPR Policy).

. disclose within the Technical Body the commercial terms for licenses for which they have undertaken to grant licenses under FRAND terms and conditions. Any such commercial terms are a matter for discussion between the IPR holder and the potential licensee, outside of ETSI (see section 4.1 of this Guide).

### 2.3 Technical Body Chairmen's duties

Chairmen represent the membership while having the authority to represent the Institute in their Technical Body. Chairmen have an important role in respect of both, the identification and disclosure of essential IPRs. They have a duty to remind the Members of their statutory obligations to submit IPR disclosures.

In addition to the actions aiming at the identification of IPRs, the Chairmen also need to take the following actions, which ensure that the disclosure of essential IPRs is properly carried out:

. to record in the report of the meeting that an IPR call has been made and to record any responses;

. to inform the Secretariat of the existence of any essential IPRs identified.