This is a follow-up to an early August post, Continental, Apple, others want FCC to overstep its mandate by injecting itself into standard-essential patent licensing and litigation. The FCC proceeding (docket no. OET 19-138) is actually just meant to be about the use of the 5.850-5.925 GHz spectrum block by connected vehicles for Cellular-V2X (C-V2X) purposes. That is what, in my estimate, roughly 95% of all submissions focus on. But that tireless, tiresome tire company Conti and some others (typically Apple-aligned organizations) insist that the FCC address SEP licensing questions that fall into the remit of several other U.S. government agencies.
With similar "logic", companies seeking to devalue (by complicating the enforcement of) patents on building automation standards like KNX could lobby municipalities in connection with zoning decisions or land use designations.
Conti had until about a month ago to file a petition for writ of certiorari with the Supreme Court. It gave up a legal battle against the Avanci automotive patent pool and some of its key licensors after the United States Courts of Appeal for the Fifth Circuit affirmed the district court's decision to throw out the case. A few weeks later--on November 30--Conti nevertheless had a telephone conference with more than a dozen federal government officials as its December 5 follow-up letter to Secretary Marlene Dortch of the FCC (PDF) indicates.
Attached to Conti's December 5 letter is a copy of an August 28 submission by the European Association of Automotive Manufacturers (CLEPA), The Computer and Communications Industry Association (CCIA), High Tech Inventors Association, ACT | The App Association, Fair Standards Alliance, Cisco Systems, Inc., Juniper Networks, Inc., Lenovo (U.S.) Inc., Motorola Mobility LLC, Sierra Wireless, and u-blox, Inc. to the FCC in the same context.
Two of those organizations have recently been criticized for astroturfing (pretending to represent the interests of parties other than the ones who actually pay and control them):
Shortly thereafter, several well-respected Members of the European Parliament filed a formal complaint over CCIA's alleged astroturfing with the European Commission.
That recent and very negative publicity should have been reason enough for Conti and its lawyers to refrain from pointing the FCC to a letter signed by those organizations.
Conti claims to have "concerns about the unanticipated intellectual property consequences of limiting the 5.9 GHz band exclusively for Cellular-V2X (C-V2X) use." Nothing in that context can be reasonably described as "unanticipated [IP] consequences." Virtually the entire automotive industry has taken the Avanci license. Car makers and their suppliers enjoy freedom to operate. The connected-vehicle space is highly innovative. Those "unanticipated [IP] consequences" are a red herring in Conti's recent filings with the FCC.
In late August, other stakeholders already filed responses to Conti's earlier submission:
IP Europe (PDF) points to Conti's courtroom losses and accurately notes that Conti has "failed to let the [Federal Communications] Commission know that this present initiative is part of a larger failed strategy."
Ericsson (PDF) explains why "Continental’s ask would undermine the public interest and U.S. trade interests": C-V2X deployments, which are "live-saving" in Ericsson's words, would be delayed, and the wireless standard-setting system would be compromised. Ericsson also says "Continental’s request for the FCC to intervene in patent licensing exceeds the agency’s legal authority."
Qualcomm (PDF) calls Conti's political demands "are legally infirm and based on allegations that lack any basis in fact." And what Conti seeks "is outside the FCC’s legal authority (and expertise) and would interfere with long-standing U.S. and international judicial and administrative processes and remedies." At the end of the day, "[g]ranting Continental’s requests would constitute poor public policy and would have deleterious effects on wireless innovation worldwide."
The FCC should not waste more time on what Conti and its astroturfers are peddling after they miserably failed in the appropriate fora.
