----- Original Message -----

From: Alderman Ray
Sent: Tuesday, November 03, 2009 3:10 PM
Subject: Re: Insight Volume 11 Num 3 November 2009

Hi George:
We have experienced 6 patent declarations (with disclosure of fees and royalties) since we adopted ex ante procedures. In each declaration, patent holders also provided a sample contract. In one instance, an objection to certain terms of a contract were submitted to me. Skitol and I talked to the patent holder/disclosing company's counsel and explained that the provisions in their contract could easily be determined as "unfair, unreasonable, and discriminatory" in a court of law. The patent holder reconsidered, and submitted a revised sample contract without the offending provisions.

Since ex ante disclosure of terms and conditions is somewhat new, we have chosen to make the disclosures available only to VITA members, and not to the general public. We would like to see a determination from the USDOJ before we make such information public (on our website). This raises an interesting legal question: does VITA have a fiduciary duty to non-members to insure that they receive the same ex ante terms disclosed to VITA members? My opinion is no. I have no fiduciary duty to non-members of the organization. And, I have no authority to demand that a disclosing patent holder offer the same terms to non-members. If I were to make the disclosures public, I may be assuming a fiduciary duty to non-members by my actions. Until my stated opinions are upheld (or found in error), we will keep the disclosures proprietary to VITA's members.





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