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					                                                                    AMCP WGC4/WP13


                                   Working Group C

                                    27-30 May 2002
                                   Montreal, Canada

Agenda Item 4: REPORT TO AMCP/8

                                      Presented by
                               Stephen Heppe (ADSI, Inc.)

                               INFORMATION PAPER



This Information Paper reviews the history of the intellectual property rights issues
surrounding VHF Data Link Mode 4, and discloses the existence of a lawsuit which may
raise new concerns regarding the availability of the standard.

The SCAA is called upon to quickly resolve this issue in the interest of fairness, and in
order to avoid any further impact to the development and implementation of VDL Mode
4, either as a stand-alone system or in combination with other systems.
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1.      Introduction

During the development of SARPs for VHF Data Link Mode 4 (VDL Mode 4), one of
the issues addressed by AMCP was the status of the intellectual concepts represented
by the emerging SARPs. In particular, there was a concern that some material in the
SARPs was not freely available to the ICAO Contracting States, and that certain patent
rights might be asserted.

After significant technical evolution of the original proposal for VDL Mode 4 presented
by one member to ICAO/AMCP, involving participation by members from all ICAO
Regions, SARPs for the new VDL Mode 4 were recommended for adoption at

ICAO was informed that the SARPs do not infringe on any known patent, providing
that manufacturers of VDL Mode 4 equipment develop their own means of
implementation. This written assurance accomplished four objectives:
1. It allowed AMCP to recommend adoption of SARPs for VDL Mode 4;
2. It assured that VDL Mode 4 is not proprietary to any one person or nation, thereby
   removing all doubt about its worldwide application and availability;
3. It clarified that VDL Mode 4 may be implemented by anyone and that no one could
   claim a monopoly on the development of VDL Mode 4 technology; and
4. It encouraged potential manufacturers around the world to produce avionics and
   other products in order to deliver the benefits of the technology to the aviation

It appeared that all potentially concerned parties had indicated the absence of
proprietary interest in the standard. This seemed to pave the way for rapid
implementation without concerns as to proprietary interest.1

2.      Issues regarding intellectual property that have emerged since March ‘01

Despite the assurance received, and the clarity of the ICAO process which involves
public debate and resolution of technical issues, the Swedish government has now
taken the position that at least one US company, involved in the original validation of
SARPs for VDL Mode 4, has misappropriated Swedish confidential information, and
profited at the expense of the SCAA by virtue of some of the changes to SARPs that
were proposed (and which were adopted by consensus within the Validation Subgroup).
The SCAA has filed a lawsuit against PMEI alleging misappropriation of valuable
confidential information, fraud, and breach of contract. SCAA has alleged that PMEI
disclosed this misappropriated confidential information to unnamed third parties, and
that through the use of this information, PMEI was enabled to advance its own
economic interests and damage SCAA.

 Report on Agenda Item 2, AMCP/7. Paragraph “It was noted that no patents applicable to the
VDL Mode 4 SARPs were identified at the meeting. It was therefore concluded that the material
proposed in the SARPs would be freely accessible to everybody, subject to no particular conditions.”

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While the lawsuit is not a matter of concern for ICAO, it indicates that additional
proprietary interests may exist with regard to VDL Mode 4. The reasoning is this: In
order for the SCAA to have legal standing in the lawsuit which it filed, it must have
such an interest.

The SCAA has not disclosed any proprietary interest that it may own in VDL Mode 4
or in the earlier GP&C transponder which was developed by Mr. Lans. Any such
interest should either be disclosed (if it exists) or disclaimed (if it does not exist) in
order to avoid concerns regarding the general availability of SARPs for VDL Mode 4.

The lawsuit may also represent a threat to the ICAO process where individual experts
act according to their conscience for the best interest of aviation (i.e., as opposed to the
more limited interests of their sponsoring State). If a State can sue a participant with
which it was originally associated, merely for suggesting changes to a draft standard,
the process by which SARPs are developed and validated could be irreparably harmed.

3.     Potential impact of the lawsuit

The lawsuit may have a chilling effect on worldwide development of VDL Mode 4.
This could include the direct use of VDL Mode 4 as a surveillance data link, its
potential use as a communications data link, and its possible hybrid use with other
technologies including 1090 MHz extended squitter, UAT, and the other VDLs.

AMCP is currently considering the development of new SARPs for surveillance data
links, which could potentially include VDL Mode 4 as a synergistic component. A
potential proprietary interest, asserted by a single State, could adversely affect the
perceived value and potential availability of such a system.

Litigation and the threat of litigation can have a substantial negative impact on the
ability to develop new industries. It would be a great loss to ICAO, and to civil aviation
in general, if such threats prevent useful development and deployment of VDL Mode 4.

4.     Summary

It may not be possible for AMCP to address this issue. However, the concerns
regarding potential undisclosed proprietary interest, and the integrity of the ICAO
process, could be mitigated if Sweden and SCAA move quickly to:
a) Affirm that SCAA does not now own, and never owned, any confidential
   information regarding the underlying techniques and devices that comprise the
   VDL Mode 4 technology;
b) Affirm that SCAA supports the ICAO process whereby standards are developed
   through consensus among international experts, and that these experts are obliged to
   act according to their conscience and the best interests of aviation (as opposed to
   the limited interests of the State supporting their participation);
c) Affirm that the changes to SARPs, adopted by the VSG with Swedish participation,
   contributed to the elimination of concerns and thereby contributed to the timely

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   adoption of SARPs for VDL Mode 4 (i.e., the recommendation for adoption of
   SARPs by AMCP/7, as opposed to a later Panel meeting);
d) Affirm that SCAA, and the entire world, benefits from a strong standard which can
   be embraced by all;
e) Drop the lawsuit, which directly or indirectly harms all entities interested in the use
   of VDL Mode 4.

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