Insight Volume 10 Num 2  March  2008  Global standards policy and strategic developments.   Subscribe to GTW Insight 

Standards Matters at WTO; Intellectual Property Rights Antitrust and Standards;  International Standards Policy; US National Standards Policy; Regional Standards Policy; Conformity Assessment Policy;  Management System Issues;  Excerpts from the Database of Federal Register notices;     Words to Ponder

Standards Matters at WTO  

There is to be a TBT workshop on Good Regulatory Practice March  19 - 19 2008.  Over the last 13 years, delegates to the TBT Committee have stressed the importance of good regulatory practice in avoiding unnecessary trade barriers and facilitating trade. Good regulatory practice is, essentially, about the practical implementation of all the provisions contained in the TBT Agreement. In November 2006 (at the Committee's Fourth Triennial Review), delegations agreed to share experiences on a number of aspects relevant to good regulatory practice with a view to deepening their understanding of the contribution good regulatory practice can make to the implementation of the TBT Agreement . According to the tentative agenda for the workshop, The first panel includes:

(i)               Brazil's new draft National Guide on Good Practice (Mr. Alfredo Carlos Orphão Lobo)

(ii)              Canada's new standards guide for regulators developed by the Standards Council of Canada (Mr. David Shortall)

(iii)            Chile's experience with Good Regulatory Practice (Mrs. Ana María Vallina)

(iv)            European Communities: Making Better Regulation (including simplifying existing regulation)

(v)             Japan's experience and perspectives on good regulatory practice

(vi)            Korea's Approach to Good Regulatory Practice

(vii)         Malaysia's experience in preparation for the implementation of Good Regulatory Practice ( Rajinder Raj)

  Intellectual Property Rights Antitrust and Standards 

Federal Trade Commission on January 23, 2008 announced a complaint and settlement with Negotiated Data Solutions LLC (N-Data), which allegedly violated federal law by engaging in unfair methods of competition and unfair acts or practices regarding its enforcement of certain patents against makers of equipment employing Ethernet.  On February 25, the FTC extended the deadline to April 24 for interested parties  to file  public comments in connection with the consent agreement. 

Three ANSI committees address  intellectual property related policy.   The ANSI IPR policy committee; the ANSI patent group: and the ANSI copyright group.  

At the February  13 meeting of the copyright group    ASTM Counsel Tom O’Brien shared news that the   American Society for Testing and Materials dba ASTM International, had begun litigation  against  Target Engenharia E consultoria LTDA and TELMEX DO Brasil, LTDA  for copyright infringement, removal and falsification of copyright management information; trademark infringement and false designation of origin; unfair competition and breach of contract.

The ANSI IPR policy committee and  the ANSI patent group meet March 18 and 19 in San Jose California. 

International Standards Policy 

ANSI's International  Policy Committee (IPC) is  responsible for development of ANSI strategic directions and policies related to international and regional standardization in the broadest sense.  ANSI's IPC meets March 3 in Washington

US National Standards Policy  

On February 21 The U.S. Toy Industry Association (TIA), in conjunction with the American National Standards Institute (ANSI), announced  that a  safety assurance program for toys was available for public review and comment. Developed in response to toy safety concerns raised during the summer of 2007, the new program prescribes procedures and provides audit mechanisms for design hazard analysis, auditing manufacturing process controls, and product safety testing.     Public comments through March 24 will be accepted 

Regional Standards Policy  

Europe

The European Commission convened a conference  in Brussels  12 February 2008 on "European ICT standardisation policy at a crossroad: A new direction for global success".  A  report  prepared for the meeting called attention to  meaning of  "open standard"  and noted  advocacy of the free availability of standards. The report identified  IETF and W3c and Oasis as organizations important to EU interests. 

The Discussion document prepared for the meeting  states:

In a first step, it is important to describe and confirm the “qualities” or characteristics needed by standards in order to be considered to be eligible for use in association with legal frameworks and policies.

The Commission, therefore, proposes to make use of the WTO criteria for global standard setting organisations with particular emphasis on the ICT domain, since this form the basis for the European standardisation policy.

In his address  Costas Andropoulos Head of Unit, DG Enterprise and Industry ICT for Competitiveness and Innovation  addressed "The Way Forward. " Mr Andropoulos sees:

•  Launch of high level policy dialogue with stakeholders

• Better integration of standardisation work of fora and consortia in European standardisation policy

• Preparatory step: clarification of WTO criteria, with emphasis on the ICT domain

In a slide   "Adherence to WTO Criteria"  Mr Andropoulos identifies important characteristics of consensus standards setting: Openness · Availability · Consensus · Intellectual property rights · Balance · Relevance · Transparency · Neutrality and stability · Maintenance · Quality.  

With respect to Intellectual Property rights the  Discussion document  states:

IPR issues: The Commission departments favour the (F)RAND approach to dealing with IPR rights. During the consultation process the (F)RAND approach as such has not been called into question however some comments highlighted the difficulties in providing a clear interpretation of the concepts of “nondiscriminatory” and “reasonable”. Other comments noted the complexity and the high costs involved in monitoring patent search and patent data bases. Some organisations, such as ETSI already initiated major IPR related activities. Others noted the importance and benefits of intellectual property as an incentive for IPR holders to voluntarily contribute to standardisation;

There is a need to further analyse and clarify the situation before initiating any specific actions. The Commission therefore proposes organising a dedicated open consultation workshop in 2008. All stakeholders, and in particular standards developing organisations and public authorities will be invited to present their expectations and share their experiences. Following the workshop it should become clearer whether and what further actions are required.

Regrettably, there are no "WTO Criteria" applicable to  Intellectual property rights in standards setting.  Intellectual property rights policy in standards setting has increasing  international implications.  In a strategic 2007 global standards policy accomplishment, ISO and IEC and ITU agreed  on a Common Patent Policy for ITU-T/ITU-R/ISO/IEC . Neither the WTO TBT Code of Good Practice  nor the Decision of the committee on principles for the development of international standards,  guides and recommendations   addresses patents in standards.   ISO/IEC Guide 59: 1994  Code of good practice for standardization however explicitly addressed patents in paragraph 5.9:

 "Standards should not be drafted in terms that include the use of a patented item unless the use of such an item is justifiable for technical reasons, and the rights holder agrees to negotiate licenses with interested applicants, wherever located, on reasonable terms and conditions."

Conformity Assessment Policy

On February 19  the National Institute of Standards and Technology convened a workshop for accreditors, testing laboratories  and test equipment suppliers regarding the conformity assessment scheme proposed for the evaluation of Internet  Protocol Version 6 (IPv6) products to be purchased by federal agencies. The USG IPv6 Testing Program will require that products document claims of compliance to the profile through a Supplier's Declaration of  Conformity (SDOC) in accordance with ISO/IEC 17050. In June 2005 the Office of Management and  Budget initiated a policy to expedite adoption and deployment of IPv6  within the Federal Government  As part of this policy, NIST was directed to  develop a standard to address IPv6 compliance for the Federal  Government. In response, NIST  prepared NIST SP 500-267 ``A Profile  for IPv6 in the U.S. Government'' that provides such a standard and  outlines the basic parameters for a compliance testing program.

While currently  focused narrowly on toys, the  toy safety assurance program  described above Conformity Assessment Policy  could evolve  to include many products imported to the US

Management Systems  

ANSI has approved  American Society of Safety Engineers (ASSE)  as administrator for the U.S. Technical Advisory Group (TAG) for the  ISO Technical Management Board Working Group (ISO/TMB/RM) on Risk Management. The ISO ISO/TMB/RM last met  December 3 – December 7 in China  to review N47 Committee Draft of ISO 31000 “Risk management — Guidelines on principles and implementation of risk management” .  The United States has not previously participated in the work.  Other  drafts prepared by the ISO/TMB/RM include:

N29 Working Draft 3 of AWI 25700 “Risk Management – Guidelines on principles and implementation of risk management”

N30 Working Draft 1 of “Risk management – Vocabulary – Guidelines for use in standards”

U.S. TAGs review standards and documents and  forward positions to the ANSI  for voting at the international level with the International Organization for Standardization (ISO). The TAG will recommend and support US expert participation in future activities of  ISO ISO/TMB/RM .

Words to Ponder    

It is the year 2008  and Noah lives in the United States.  The Lord speaks to Noah and says, "In one year, I am going to make it rain and cover the whole earth with water. But I want you to save  two of every kind of living thing on the earth. I am commanding you to build an Ark."

In a flash of lightning, God delivered the specifications for an Ark.   Fearful and trembling, Noah took the plans and agreed.   "Remember," said the Lord, "You must complete the Ark and bring  everything  aboard in one year." Exactly one year later, a fierce storm  covered the earth and  the  seas  were in tumult.  The Lord saw Noah weeping.  "Noah," He shouted, "where is the Ark?"

"Lord," cried Noah.  "I did my best, but there were   big   problems.  First, I had to get a permit for construction and your plans did not comply with the codes. I had to hire an engineering firm and redraw  the   plans. Then I got into a fight with OSHA over whether or not the Ark   needed   a fire sprinkler system and flotation devices.  Then my neighbor objected, claiming I was violating zoning ordinances by building the Ark in my   front  yard, so I had to apply for a variance. I had   problems getting enough wood for the Ark, because there was a ban on   cutting   trees to protect the Spotted Owl. I finally convinced the U.S. Forest   Service that I needed the wood to save the owls.  However, the Fish and   Wildlife Service won't let me catch any owls.  So, no owls.   When I started rounding up the other animals, an animal rights group sued me.  They objected to me only taking two of each kind aboard.   Just when I got the suit dismissed, the EPA notified me that I could not complete  the Ark without filing an environmental impact statement on your proposed flood.  Then the Army Corps of Engineers demanded a map of the proposed new flood  plane.  I sent them a globe. I just got a  notice  from the state that I owe them some kind of user tax and failed to register the Ark as a "recreational water craft." I really don't think can  finish the Ark for another 5 or 6 years!" Noah wailed.

The sky began to clear, the sun began to shine and the seas began to   calm.   A rainbow arched across the sky.  Noah looked up hopefully. "You mean you are not going to flood the earth, Lord."  "No," said the Lord.  "I don't have to, you have enough problems with these regulations.  

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