History of the Patent Policy of the American National Standards Institute

Abstract

The American National Standards Institute (ANSI) patent policy applies to standards developing organizations (SDOs) accredited by ANSI (known as Accredited Standards Developers (ASDs)) to issue American National Standards (ANS). In order to obtain or maintain status as an ASD, an SDO must include the text of the policy as appropriate, in its accredited procedures along with any additional information as required; or submit to ANSI a written statement of full compliance with the policy in addition to statements that satisfy the policy requirements. The ANSI patent policy has a long history, and has been evolving since 1932 to address the intellectual property and standards issues of the day. ANSI’s experience illuminates what has worked and what has not. Understanding how the policy has changed over time provides practical lessons for SDOs and the voluntary standards community. This includes not only the SDOs accredited by ANSI and whose procedures and operations must comply with ANSI’s essential requirements, but also others who will benefit from ANSI’s experience. In the opinion of the author the evolution of the ANSI patent policy highlights instructive experience: 1) An SDO needs to protect itself from involvement in litigation about the accuracy and completeness of statements and about infringements of patents due to use of the standard. 2) Between 1969 and 1995 ANSI patent policy included patent holder submission of specific terms and conditions and active evaluation by counsel or committee of such and recording a statement of the basis for considering submitted terms and conditions free of any unfair discrimination; 3) ANSI’s policy does not currently require disclosure but describes what is to happen if disclosure happens; however the accompanying Guidelines to implementation of the policy acknowledge the value of early disclosure and suggest procedures SDOs may implement to encourage disclosure; 4) The essence of the ANSI patent policy is a requirement that when an SDO receives a notice that a proposed or an approved standard may require the use of a patent claim (i.e. an SEP), the SDO must obtain an assurance that: “A license will be made available to applicants under reasonable terms and conditions that are demonstrably free of any unfair discrimination.” 5) The consequence of not fulfilling the requirements of the ANSI policy is that the standard cannot be an ANS. SDOs should consider the “consequences” for not meeting the ANSI policy. The ANSI patent policy is a living document. Currently in mid 2014, The ANSI Intellectual Property rights policy committee is contemplating revisions to the policy to address the standards and patent issues of the day. The ANSI patent policy is a valuable resource containing the best thinking of leaders within the US voluntary standards community how standards developing processes ought to address the SEP issues of the day.