The risks of Standardization and IP Protection.

The Continua Health Alliance has been working on creating a network of standards, drawing on the IEEE for standardized data formats and wired wireless standards groups to define the connectivity level over which the data can be transported. Their choice of wireless standard is the BL LE, which is already present in the majority of smartphones. Despite the technical reasons that make the Bluetooth Low Energy a good candidate for the eHealth systems, it is obvious that Continua ended up by selecting this standard simply because it is the one that manufacturers include mostly in their handsets.

The work of the GSM Association will certainly increase the role that mobile phones are going to play in the broadband structure. As a consequence, this will increase in terms of billions the number of broadband mobile phones that will include the Bluetooth Smart technology. The deeper meaning of this forecast is that clearly, the technology selection for a wireless health product will be impersonally made by product manufacturers since the market will ask for healthcare devices that have something to connect to. The role of regulators is limiting the manufacturers, as we already saw when considering the role of the FDA, but what can be considered a real risk in terms of costs for healthcare manufacturers, is the selection of a standard that is strictly connected with Intellectual Property disputes. The conflicts connected with the Intellectual Property can constitute a real risk for the system. In a public document, the Bluetooth SIG mentions that from the IP viewpoint, wireless standards are not equal. As the importance of wireless standards starts to increase, the concerns connected to Intellectual Property starts to increase exponentially, as already happened with patent trolls attacking ZigBee and Wi-Fi. The principal problem is that most people not consider Intellectual Property rights when undergoing through a standardization process [1]. There is the stupid conjecture that if a standard is selected, then as long as you have the right to use it there are no related IP problems. Not even the standards bodies, such as ETSI and IEEE give any IP assurance, which means that a lot of companies have been taken to court, only because of their ignorance. This lack of knowledge can cost to a company millions of dollars. Therefore, for the eHealth system is important to understand that the existence of a standard does not give to a company a free right to automatically possess  the IP within it. If we consider the two standards selected by Continua Health Alliance, Bluetooth Low Energy and ZigBee, they both impose to the company that uses the standard in their product to sign a member agreement, which contains a clause of IP ownership. To be more precise, this is connected with the concept of Necessary Claims; once the company decides to signup because has the necessity of that specific technology, it also gives up the right to claim for the violation of any IPR the company itself might own, which is used by other companies developing the standard. For example, in the Bluetooth technology you cannot ask for a fee for anyone using your IPR as complement of the standard, and this license is defined as RANDZ (Reasonable and Non Discriminatory- Zero cost). When considering the ZigBee technology the situation is different, because in theory it is possible to charge a fee for other ZigBee companies, and this is defined as a RAND license (Reasonable and Non Discriminatory).

Is this a good approach for Intellectual Property rights? I think it has a double- sided result: on one side, companies agree to not sue each other, but on the other side they give away part of the value of their IP. Basically, the problem is that is quite hard for industries to estimate the value that the IP use can have as a competitive tool. When a company signs this sort of agreement, it is also signing up to legally provide the future use of its IP that might be extremely valuable in the future. This means that a company with a conservative approach to IP, can prefer to take a conservative position and not sign. Before a standard is finalized, most of the standards groups do an IP evaluation to understand if there can be any problems from patents owned from outside the standard body. But of course none of the standards organizations give immunity to risks. When approaching to a standard, how can a company analyze the risks?

The first thing to do when selecting a standard is to look at how much that standard covers. Besides the largest adoption on smartphones, one of the major reasons behind the adoption of Bluetooth as a standard by Continua, is the fact that the Bluetooth specifications are very exhaustive starting from the radio specification going through the application profile. This means that all elements of the standard are included in the ember IP agreement. Instead, ZigBee agreement provides no IP cover for  the specifications, since it use external standards like the IEEE 802.15.4 for the radio and baseband layer. The main idea is that a standard can only offer IP protection for the parts it own.

 

Standards and IP protection

The more companies one can get to sign for the IP license, the more protection is ensured from prosecutors. Bluetooth is extremely good in convincing companies to sign the IP license, as they have over 13,000 members. Z-Wave is a standard created exactly to cover the full range from radio to application. The reason why this standard has not the same popularity of Bluetooth, is connected to the fact that only one company is the owner of the Z-Wave IP. Additionally, this standard can’t count on the security of having 13.000 contributing members for its IP, which instead Bluetooth has. Standards like Z-Wave haven’t contributed to the market enough to make it worth suing or attacking them with patent trolls. Also the presence of a standard in the market is essential to determinate possible risks; Continua is very well aware of this and since Bluetooth has been around longer than other standards, it ensures that the standard is safer and has more members. As a conclusion we can state that more recent standards are more risky. The Bluetooth Low Energy, despite being considered a recent standard, is a rather straightforward process, because it is a company-based standard that can count on the security and wide membership of a standard like Bluetooth. This is a key attribute for the selection of the BL LE technology as de facto standard for the health devices by Continua Alliance. Surely, the question that organizations specifying the standards, such as Continua Health Alliance, need to investigate is whether they are conscious of the risks they take when selecting a specific standard.

References:
[1] Nick Hunn, "Essentials of Short Range Wireless", Cambridge University Press, 8 Jul.2010