Subject: Mandatory licensing (was: Rechartering to focus on problem)

From: [email-masked]
Date: Wed, 19 Mar 2003 17:34:23 -0500

Larry,

> Nothing I have ever proposed or supported would require you or any other
> patent holder ("evil" or not) to give away your patents without you
> signing up for that by actively participating in a standards-setting
> activity relating to those patents.

While this wasn't directed at me, it does expose a problem specific to
the IETF and the way it operates.

IETF WGs are somewhat amorphous entities, as membership isn't really
tracked, and the overhead of joining is low (send email to foobar-request
to join the foobar mailing list, congratulations, you're now a member
of the foobar WG).  For myself (and I suspect many others), this is
something that I(we) can decide to do based on technical relevance and
interest, generally without having to ask permission.  OTOH, if
just joining the foobar WG (e.g., going to a meeting, a mailing list
comment or two) exposes the foobar portion of a company's patent
portfolio to mandatory licensing in a fashion that may not be
discovered until years later, the company is going to insist on
inserting lawyers into decisions about what WGs its employees
may join in order to control that exposure.

Mandatory licensing is a larger concern in this context than mandatory
disclosure, as disclosure only affects claims with respect to the
standard, whereas licensing affects the value of the patent in
other contexts, even if the mandatory license is restricted
to the practice of the standard.  An assertion that Alice is
entitled to even this sort of restricted license to Bob's foobarA
patent reduces the value of that foobarA patent to Alice, and in
turn will likely affect terms for settlement of patent litigation.

I'd prefer to minimize the role of lawyers in determining
what WGs I can participate in.

Thanks,
--David
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EMC Corporation, 176 South St., Hopkinton, MA  01748
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[email-masked]        Mobile: +1 (978) 394-7754
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---

From: Zenaan Harkness <[email-masked]>
Date: 21 Mar 2003 09:50:21 +1100

> turn will likely affect terms for settlement of patent litigation.

I thought that mandatory licensing would be limited, perhaps this should
be explicitly, to protect only claims against implementers/
implementations of the standard. How does the W3C (proposed) policy
manage this?

And ability to implement is surely a prerequisite to a standard. And we
_should_ be able to implement a standard free from the threat of certain
types of IPR litigation, including patent or other potentially "revenue
depleting/ demanding" litigation. Becuase Open Source/ Free Software
(OSFS) implementations nearly always don't have any revenue to provide
to satisfy a claimant.

Which leads us to a fundamental premise it seems - OSFS implementations
of standards ("important standards"?) are:
 - desirable
 - useful
 - necessary
 - conducive to community building
 - conducive to technology adoption
 - conducive to free markets

If we take this as given - and I assume most do, and propose that we do
- we can naturally assume that impediments to (specifically) OSFS
implementations are undesirable. Impediments to non-OSFS implementations
are perhaps also undesirable - hopefully others can comment on this.

Next we can ask what impediments to OSFS implementations have shown to
exist - what data is there, is the potential for future threats rising,
and what can be done to head them off. Oh, and since this is IETF we
limit ourselves to this (IETF) forum.

Also, I propose that for the step of "data gathering", it would be
limiting and a little foolish to ignore outright everything outside the
immediate IETF forums. To ignore the reality of the (IETF's) external
environment would surely not provide for optimum decision making
(technical or otherwise).

Next I assume and believe that the threats (to standards implementation,
OSFS or otherwise) that we can and should deal with, and so far haven't
(in a policy way within IETF), are directly IPR related.

Which finally leads to an obvious (in my opinion) proposal to re-charter
this WG, or convene a new WG, to: itemize, detail, determine solutions
for, and draft an RFC for, such policy. Someone else can perhaps put
that more eloquently than I.

zen

-- 
Mr Zenaan Harkness, Manager, VIDC
Phone: +678 25 151  Fax: +678 25 178  Mobile: +678 45 179
Please respect the confidentiality of this email.

---

From: Zenaan Harkness <[email-masked]>
Date: 21 Mar 2003 12:03:21 +1100

On Fri, 2003-03-21 at 11:17, Joel M. Halpern wrote:
> As far as I can tell, there is no policy that will allow you to implement 
> without fear / risk of intellectual property claims.  (Note that you here 
> applies equally to open source and corporate / commercial implementors.)
> There are policies which can reduce your knowledge of the risks.
> Be very careful what you ask for.

Correct, thanks. I should have said reduce.

> For example, the W3C rules only require disclosure / licensing of essential 
> mechanisms.  This means that if a property holder has a patent on a 
> possible implementation, that person does not have to disclose.  However, 
> you may well implement in the fashion described, and be at risk.

Thanks for the clarification. Is there some legal thing re patents that
says if it's obvious (which if you implement without seeing a patent, it
must have been obious) you're ok, or do you have to reimplement? (sorry,
getting OT here).

> Yours,
> Joel M. Halpern
> 
> At 09:50 AM 3/21/2003 +1100, you wrote: