Subject: patents && standards

From: Russell Nelson <[email-masked]>
Date: Thu, 27 Mar 2003 09:56:53 -0500

The only time when the ability to create royalty-bearing standards is
a good thing is when there is only one way to implement that
technology.  But if that's the case, then why create a standard if
there are no alternatives?  It's fully within the patent-holder's
interests to create a standard that benefits all users.  Why should
IETF volunteers help them?

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From: Pekka Savola <[email-masked]>
Date: Thu, 27 Mar 2003 17:09:32 +0200 (EET)

> IETF volunteers help them?

I agree completely.  (There may be some very rare cases where it might
still make sense, but these should be very careful exceptions if allowed
at all.)

Or even if multiple companies have each patented the same bit of
technology and would cross-license to each other.

-- 
Pekka Savola                 "You each name yourselves king, yet the
Netcore Oy                    kingdom bleeds."
Systems. Networks. Security. -- George R.R. Martin: A Clash of Kings

---

From: Eric Rescorla <[email-masked]>
Date: 27 Mar 2003 07:24:31 -0800

Russell Nelson <[email-masked]> writes:
> there are no alternatives?
It's one thing to have a patent that covers all applications and
quite another to have a fully formed standard. To give merely
one example, there's a long way to go from RSA to SSL or S/MIME.

-Ekr

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[Eric Rescorla                                   [email-masked]]
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From: Harald Tveit Alvestrand <[email-masked]>
Date: Thu, 27 Mar 2003 16:27:18 +0100

> IETF volunteers help them?

We have a worked example of that - the PKCS "standards" promulgated by RSA 
(PKCS#1, PKCS#7, PKCS#10 and so on), all built around the RSA patent.

Does anyone care to comment on the influence this had on the standards 
process, and how the IETF was able to ignore or influence those?

                    Harald

---

From: [email-masked] (Bruce Perens)
Date: Thu, 27 Mar 2003 07:35:59 -0800 (PST)

From: Pekka Savola <[email-masked]>
> technology and would cross-license to each other.

Cross licensing is a big-company game. Everyone else gets left out.
I don't think it's a premise for declaring that a patent is acceptable.

	Thanks

	Bruce

---

From: Russell Nelson <[email-masked]>
Date: Thu, 27 Mar 2003 11:01:30 -0500

> one example, there's a long way to go from RSA to SSL or S/MIME.

You trimmed off the portion of my original email that answers your
question.  I'll paste it back in:

 > It's fully within the patent-holder's interests to create a
 > standard that benefits all users.  Why should IETF volunteers help
 > them?

---

From: Eric Rescorla <[email-masked]>
Date: 27 Mar 2003 08:46:50 -0800

Russell Nelson <[email-masked]> writes:

> question. 
I trimmed if off becasue I was addressing a different point, namely
your question "why create a standard if there are no alternatives".
As I said previously, just because you had to use public key and
that was owned by someone doesn't mean that there weren't lots
of different ways to do it--and the patent holder hadn't necessarily
thought of all of them.

> I'll paste it back in:
I should think that would be relatively obvious: it's in our
interest as well.

-Ekr

---

From: Scott W Brim <[email-masked]>
Date: Thu, 27 Mar 2003 11:42:36 -0500

> there are no alternatives?

I can't think of a working group that started OUT with the idea of
standardizing something that was already published and patented.
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From: "Bob Wyman" <[email-masked]>
Date: Thu, 27 Mar 2003 11:34:50 -0500

Russell Nelson wrote:
> It's fully within the patent-holder's interests 
> to create a standard that benefits all users.  
> Why should IETF volunteers help them?
	As Nelson said: having a standard will often "benefit all
users." IETF volunteers are part of the community of "all users." Thus,
mere self-interest indicates that volunteers will, under some
circumstances, find it rational and good to assist in standardizing the
use of some encumbered technology.
	Given the IETF current practice, we are fortunate that the IETF
is, in fact, able to work on defining the manner in which encumbered
technologies will be used in those cases where doing so would provide
clear benefit to "all users." However, the binary rules against the
incorporation of any encumbered technology that are being proposed by
others would prevent the IETF from serving the community in many cases
where "all users" would clearly benefit from the good services of the
IETF. This would be wrong.

> why create a standard if there are 
> no [Royalty free] alternatives?
	If the entire content of the standard were simply a repetition
of the patent-holder's own claims and disclosures, then there would
clearly be no reason to go to the effort of creating a new standard.
But, this is not the case with the vast majority of standards. The more
common situtation is to have a standard which is encumbered in part as a
result of including some encumbered component or sub-method. For
instance, the many standards that incorporate use of RSA based
algorithms. In these cases, the encumbered technology, while a subset of
the matter covered by the standard, is still essential to the operation
of the larger standard.

		bob wyman

---

From: [email-masked] (Bruce Perens)
Date: Thu, 27 Mar 2003 09:13:07 -0800

Let's re-phrase the question. What do we gain in granting the IETF's
imprimatur, as well as our volunteer work, to this sort of standard?
What _should_ we gain? Obviously, the IETF has already shown a desire
to gain certain more than just the utility of a standard - we already
attempt to levy intellectual property terms upon our standards. My
contention is that IETF is selling its imprimatur, and the work of its
volunteers, cheaply. It should be asking for more.

	Thanks

	Bruce

---

From: Scott W Brim <[email-masked]>
Date: Thu, 27 Mar 2003 12:32:13 -0500

> attempt to levy intellectual property terms upon our standards. My

I can't figure out what you mean by "levy" here.

---

From: Russell Nelson <[email-masked]>
Date: Thu, 27 Mar 2003 12:58:26 -0500

> of different ways to do it--and the patent holder hadn't necessarily

Fair enough.  And the quid-pro-quo coming from the patent holder
should be a royalty-free license.

---

From: Eric Rescorla <[email-masked]>
Date: 27 Mar 2003 10:27:37 -0800

> should be a royalty-free license.
Uh, why would that be in the patent holder's interest?

-Ekr

---

From: Russell Nelson <[email-masked]>
Date: Thu, 27 Mar 2003 13:32:25 -0500

> Uh, why would that be in the patent holder's interest?

Because the patent holder hadn't necessarily thought of all of the
different ways to do it.

People are assuming that patent holders who give up royalties are
giving up all income.  If they were, then Cisco (which doesn't seek
royalties) would be a penniless dot-com.  The trade-off here is:

retain royalties and sell into a smaller marketplace

                    vs

give up royalties and make up the difference with a bigger
marketplace.

I think the IETF should insist on the latter.  As it stands now, the
IETF puts itself in the position of helping the patent holder gain
royalties AND revenues on product sales.  Is that anything a volunteer
organization with a public policy interest should do?

---

From: Eric Rescorla <[email-masked]>
Date: 27 Mar 2003 11:02:10 -0800

> Because the patent holder hadn't necessarily thought of all of the
Right, but if they don't make any money on the new applications,
it's not clear how it helps them.

> give up royalties and make up the difference with a bigger
This only applies if the IPR holders actually manufacture the
products themselves. In a fair number of cases, the patent
holder primarily is licensing the IPR. Such a patent holder
has no incentive to grant a royalty free license, no matter
how many new applications it opens up.

> organization with a public policy interest should do?
As usual, it depends.

Remember that the case we're discussing is one where there is
a piece of technology that's basically unsubstitutable. So,
we have the option of:

(1) not standardizing the technology.
(2) standardizing the technology.

In the first case, we've improved the situation for
(a) the patent holder.
(b) anyone who is able to pay the patent royalties and wants
    to use the patent.

In the second case, everyone's situation stays as it is.

Would you care to explain why we shouldn't be in favor of a Pareto
dominant outcome? As far as I can tell, the only real argument is that
it weakens our strategic positon vis a vis other patent
holders. However, whether that's really true seems to me to be
primarily an empirical question.

-Ekr

---

From: Russell Nelson <[email-masked]>
Date: Thu, 27 Mar 2003 15:02:38 -0500

> (b) anyone who is able to pay the patent royalties and wants

How has their situation been improved?  In the first situation, the
patent holder has to bear all the costs of making the patent useful.
In the second situation, people have volunteered to help the
patent-holder's bottom line by contributing their efforts towards
increasing his revenue.

---

From: Russell Nelson <[email-masked]>
Date: Thu, 27 Mar 2003 15:24:19 -0500

Bob Wyman writes:
 > However, the binary rules against the incorporation of any
 > encumbered technology that are being proposed by others would
 > prevent the IETF from serving the community in many cases where
 > "all users" would clearly benefit from the good services of the

All the benefits you claim can be provided by the patent holder alone.
The IETF has no need to act in this case.  Any improvement that could
be made by the IETF will result in increased revenue by the patent
holder.  As a consequence, the patent holder has every interest in
making those improvements.  There need be no patented IETF standards.

 > In these cases, the encumbered technology, while a subset of the
 > matter covered by the standard, is still essential to the operation
 > of the larger standard.

Exactly my point.  Therefore, the patent holder, in order to maximize
his revenue, will fund whatever standards are necessary.

---

From: Eric Rescorla <[email-masked]>
Date: 27 Mar 2003 13:03:49 -0800

> patent-holder's bottom line by contributing their efforts towards
I suppose it would make my argument appear more sensible
if I'd phrased it properly. Where I wrote "first case", I meant
"second case".

In the case where we don't standardize the technology, we've
added no value whatsoever. The patent holder can make any
arrangements they choose.

In the case where we _do_ standardize the technology:
(1) the patent holder's situation has improved because we've
    opened a new market for him.
(2) the people who want to use the patent now have a new
    field of use for it. Sure, they have to pay royalties,
    but before they didn't even have that field of use,
    so they have more choices. They're better off.

As I said, it's Pareto dominant. What's to object to?

-Ekr

---

From: "Bob Wyman" <[email-masked]>
Date: Thu, 27 Mar 2003 16:02:43 -0500

Russell Nelson writes:
> the patent holder, in order to maximize his revenue, 
> will fund whatever standards are necessary.
	Your faith in the motivating force of logic is amazing...
Unfortunately, your conclusions appear not to be informed by emperical
evidence. Reality and history often teach lessons very different from
what logic would dictate.
	The reality is that patent holders often maximize their revenue
by avoiding costs that will certainly be assumed by the community. Thus,
RSA did not need to fund the full development of every standard that
incorporated their technology. They could rely on the certain knowledge
that others, wanting to use their methods, would make the essential
investments on their own. You may consider this to be "wrong,"
nonetheless, it is reality.
	Even in cases where the patent holder might actually wish to
assume the burden of funding all standards development, there are few
who could actually afford it. The difficulty is, of course, that the
revenues that result from licensing encumbered technologies often only
flow *after* the implementations are done. Thus, you'll often find
someone with a "valuable" patent that delivers no revenue since they
can't afford to take the steps needed to make it useable. ("It takes
money to make money.") 

		bob wyman

---

From: Russell Nelson <[email-masked]>
Date: Thu, 27 Mar 2003 16:12:23 -0500

Bob Wyman writes:
 > by avoiding costs that will certainly be assumed by the community.

Exactly my point!  Patent holders know that IETF has no policy against
building their patents into a standard.  All they have to do is sit
back and wait for the ka-ching!

 > who could actually afford it.

Oh, so the patent system works, but the patent system doesn't work?
Bob, if you want to argue for change in the patent system, get at the
*back* of the line, please.  No fair jumping to the front.  The whole
point behind granting a monopoly is so that inventors will be able to
find investors.  If that doesn't work, then we shouldn't be giving out
monopolies on ideas.

 > can't afford to take the steps needed to make it useable. ("It takes

Welcome to life in a free market society.  It stinks, but everything
else stinks more.

-- 
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Crynwr sells support for free software  | PGPok | the question must be truly
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From: Keith Moore <[email-masked]>
Date: Thu, 27 Mar 2003 18:05:53 -0500

On Thu, 27 Mar 2003 09:56:53 -0500

> there are no alternatives?  

silly question.  just because folks agree that (to pick an obsolete
example) RSA is the only way to solve the problem at hand, does not
mean that all of the details of (say) PEM immediately falls from that
agreement.
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From: Keith Moore <[email-masked]>
Date: Thu, 27 Mar 2003 18:07:33 -0500

>  > standard that benefits all users.  Why should IETF volunteers help

another silly question.  they help them because they believe it's in
their interests to do so.
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From: Keith Moore <[email-masked]>
Date: Thu, 27 Mar 2003 18:09:59 -0500

> My contention is that IETF is selling its imprimatur, and the work
> of its volunteers, cheaply. It should be asking for more.

what you seem to believe is that those volunteers should support your
position on IETF patent policy even when they disagree with it.

why in the world would a volunteer want to do this?

---

From: Zenaan Harkness <[email-masked]>
Date: 28 Mar 2003 11:50:05 +1100

Bob's and Russell's exchange just here is awesome. Clarity at its best.

I very much support Russell's position.

thanks
zen

---

From: Russell Nelson <[email-masked]>
Date: Thu, 27 Mar 2003 23:55:59 -0500

> As I said, it's Pareto dominant. What's to object to?

That which is unseen:  Right now, patent holders know that the IETF
will put their patent into a standard.  They have no incentive to not
patent something, or to license it RF.

I guess that what bothers me most about the IETF's current policy is
that the IETF is in a position to help correct the patent system, and
yet it does nothing.  Worse, the IPR WG doesn't even want to talk
about it.

---

From: Keith Moore <[email-masked]>
Date: Thu, 27 Mar 2003 23:54:47 -0500

> Right now, patent holders know that the IETF
> will put their patent into a standard. 

bullshit.  patent holders know, or should know, that IETF is extremely
reluctant to put patented technology into a standard.

lies do not help your case.  
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From: Russell Nelson <[email-masked]>
Date: Fri, 28 Mar 2003 00:08:10 -0500

> lies do not help your case.  

Patent holders know that even though the IETF is extremely reluctant
to put patented technology into a standard, the IETF WILL put their
patent into a standard.

Accusations of falsehood do not help YOUR case.

---

From: Keith Moore <[email-masked]>
Date: Fri, 28 Mar 2003 00:52:09 -0500

> to put patented technology into a standard, the IETF WILL put their

no they don't know that.  they know it is a slim possibility, and  that it's
highly unlikely to happen unlesss there's no other way to solve the problem.
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From: Pekka Savola <[email-masked]>
Date: Fri, 28 Mar 2003 09:01:37 +0200 (EET)

> their interests to do so.

And who do you think such volunteers represent?  I could not believe
seeing this text from you in particular, Keith, as you always say that
volunteers should not have other interests than their own best engineering
judgment, but I may have misunderstood your point.

It is in my interests to participate in many areas of IETF work, mainly
because I want to Get Better Internet, without any personal, financial, or
other interests to do so -- and because some areas seem to need the help
badly.

However, I believe working on (non-RF) IPR-encumbered technologies and
encouraging companies which would seem to try to exploit the IETF does not
fall into this category -- and in fact, is in most cases in direct 
conflict with the ultimate goal.

It seems I have a dilemma. Should I help in these areas and working groups
or not?  Refuse to help in all areas where there are IPR-encumbered
technologies?  Refuse to help with subjects raised by people who are
sponsored by companies with IPR-encumbered technologies under non-RF
terms?  Or what?

Note that I do necessarily have any particular interests for doing so in
the first place, other than being of help.

---

From: Markus Levlin <[email-masked]>
Date: Fri, 28 Mar 2003 10:49:37 +0200 (EET)

> Accusations of falsehood do not help YOUR case.

Personal attacks aside, I submit (from personal experience) that Keith's
observation is _much_ more accurate than Nelson's. The practical result of
the current policy is _very_ close to (but not absolutely) RF.

Patent holders do know that the IETF is extremely reluctant to include
patented technology into a standard.

Patent holders do know that the IETF is extremely prone to designing
around known strong IPR. The populace of active IETF participants includes
a lot of folks which are extremely vocal against any sort of encumberances
and ensure that "... the IETF WILL put ..." is not the default case. Far,
far from it.

The current drafts are not changing this status quo.

Markus Levlin

---

From: Keith Moore <[email-masked]>
Date: Fri, 28 Mar 2003 07:37:21 -0500

> judgment, but I may have misunderstood your point.

I think volunteers contribute to IETF because they have an interest in
promoting the interests of the Internet (in some area or another).  I also
think that people contribute to IETF because they believe that they have some
useful input as to what is good for the Internet.   Neither of these
motivations is necessarily selfish.

> other interests to do so -- and because some areas seem to need the help

me too.

> conflict with the ultimate goal.

and I generally share this belief.  The point is, not everyone who volunteers
to work for IETF shares this belief.  Shall these people be expected to work
toward RF licensing even though they do not believe it is best for the
Internet?

Keith

---

From: Bill Manning <[email-masked]>
Date: Fri, 28 Mar 2003 05:06:24 -0800 (PST)

% > And who do you think such volunteers represent?  I could not believe
% > seeing this text from you in particular, Keith, as you always say that
% > volunteers should not have other interests than their own best engineering
% > judgment, but I may have misunderstood your point.
% 
% I think volunteers contribute to IETF because they have an interest in
% promoting the interests of the Internet (in some area or another).  I also
% think that people contribute to IETF because they believe that they have some
% useful input as to what is good for the Internet.   Neither of these
% motivations is necessarily selfish.

	of course there are some who have participated in the past
	and would do so in the future, except for the increasingly
	onerous burdens placed on participation; e.g. "Note Well"
	and its follow on restrictions.

--bill
Opinions expressed may not even be mine by the time you read them, and
certainly don't reflect those of any other entity (legal or otherwise).
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From: Zenaan Harkness <[email-masked]>
Date: 29 Mar 2003 00:16:45 +1100

> toward RF licensing even though they do not believe it is best for the

The (a?) fundamental philosophical difference.

---

From: Eric Rescorla <[email-masked]>
Date: 28 Mar 2003 05:58:22 -0800

> patent something, or to license it RF.
It's certainly not unseen, since I mentioned it in my original message:

        As far as I can tell, the only real argument is that
        it weakens our strategic positon vis a vis other patent
        holders. However, whether that's really true seems to me to be
        primarily an empirical question.

That empirical question hasn't really been answered.

It's not in fact the case that "patent holders know that the IETF
will put their patent into a standard". In at least some cases
the IETF has refused to do exactly that, even though the technology 
offered some obvious benefit (Zero-knowledge password proofs such
as SRP comes to mind).
of cases the IET

-Ekr

---

From: Russell Nelson <[email-masked]>
Date: Fri, 28 Mar 2003 09:09:56 -0500

> highly unlikely to happen unlesss there's no other way to solve the problem.

Keith, if something is not true, then the logical negation must be
true.  Is "Patent holders know that the IETF WILL NOT put their patent
into a standard" true?

---

From: Keith Moore <[email-masked]>
Date: Fri, 28 Mar 2003 09:17:15 -0500

>  > no they don't know that.  they know it is a slim possibility, and  that
>  > it's highly unlikely to happen unlesss there's no other way to solve the
>  > problem.
> 

no, it's not true.  my statement above is much closer to the truth.

note that the logical negation of your statement is "Patent holders do
not know that the IETF WILL NOT put their patent into a standard", NOT "Patent
holders know that the IETF WILL put their patent into a standard"

---

From: Russell Nelson <[email-masked]>
Date: Fri, 28 Mar 2003 09:30:00 -0500

Markus Levlin writes:
 > The practical result of the current policy is _very_ close to (but
 > not absolutely) RF.

So the IETF is just a *little* bit pregnant, then?

 > patented technology into a standard.

Patent holders know that the IETF WILL put their patent into a standard.
That must be true, because we know that the contrapositive is false:
Patent holders know that the IETF WILL NOT put their patent into a standard.

 > and ensure that "... the IETF WILL put ..." is not the default case. Far,

You're trying to reassure me by saying that nuclear plants very, very
rarely blow up.  I say "Yes, but from what anyone can see, there are
going to be a LOT more nuclear plants built."

Software patents aren't going away.  In fact, they're being issued at
an ever-increasing pace.  We're talking positive second derivative
here.

 > The current drafts are not changing this status quo.

They can't.  That's the whole point of this discussion, isn't it --
whether they should or shouldn't change the status quo.

So, Markus, what advantage do you personally gain from being able to
put an royalty-bearing patented technology into a standard?

---

From: Melinda Shore <[email-masked]>
Date: Fri, 28 Mar 2003 09:32:30 -0500

> true.  

Ah, the excluded middle.

Of course there are encumbered technologies included in IETF
standards, and there will be in the future.  However,
working groups tend to prefer unencumbered technology, given
the option.  Sometimes the option doesn't exist.

My experience has been that nearly everything invented to
work around NAT problems has IPR associated with it.  I
think you guys could help us out a bit by not including
address translation function in open source operating
systems and software, frankly.

Melinda

---

From: Spencer Dawkins <[email-masked]>
Date: Fri, 28 Mar 2003 06:49:11 -0800 (PST)

> ... if something is not true, then the logical negation
> must be
> true.  

OK, we've moved to elementary lessons in logic. This MAY be on
topic for IPR, but I was hoping not.

I'm not Ms. Manners for the IETF (that would be Radia Perlman),
but Steve Bellovin has asked for a mailing list hummm on a
specific question. This mailing list has turned into a DoS
attack on MY mailbox, but I'd like to stay subscribed until
Steve and Rob declare consensus, one way or the other.

Could we hold the inescapable reasoning until the hummm is
declared, and just collect "yes" and "no"?

And, if you don't like the answer Steve and Rob pull out of the
mailing list, I note that it's in your best interest to monitor
the list for people who agree with you (in either direction),
and recruit IPR-NG BoF participants from those people.

What is NOT in anyone's best interest is continued rebuttals of
rebuttals on this mailing list. I don't happen to like the
phrasing of the question that's being hummmed, but the continued
high level of heat and low level of light that I'm seeing is
making it harder and harder to imagine that the IETF will be
able to work effectively on a different IPR policy than the ones
in our current draft.

So, if you were hoping to convince me to hummm "yes" - ARGUING
IS NOT WORKING. I would have hummmed "yes" if it looked like we
could actually come up with an alternative proposal for
discussion. Arguing isn't proposing. Make me think humming "yes"
isn't doomed to waste my time.

I could easily see this working group going dormant, the mailing
list continuing to function, and a reasoned discussion about
opportunities for improvement taking place on the mailing list,
without a working group at all. This is less likely to happen if
you get yourself killfiled during the hummm, so that subscribers
no longer see your ideas!

And, just echoing Pete Resnick - we do darned little around here
without an Internet Draft. To all who see opportunities for
improvement in any direction - please give us something more
concrete to think about than a series of threads of reactive
responses to e-mail. If that was a winning strategy, it would
have already won.

Thanks,

Spencer

---

From: Carsten Bormann <[email-masked]>
Date: Fri, 28 Mar 2003 15:54:24 +0100 (CET)

> Patent holders know that the IETF WILL NOT put their patent into a standard.

Uuh, I would suggest reviewing formal logic.

Some of the confusion in this thread may come from the assumption that
RFC2026bis will be the only source of policy on IPR use in standards.
Actually, it is for the WG to decide the specific policy within the limits
established by the IETF IPR policy.
The WG can make sure that:
Patent holders know that the WG WILL NOT put their patent into a standard.
(The remaining work item then is to make sure the patent holders know that
the IESG will not accept creating another standard on the same subject.
That is interesting discussion material, indeed.)

It is too bad that the IETF is not about to solve the software patent
problem and generate world peace, but it seems, well, we can't.

Gruesse, Carsten

---

From: John C Klensin <[email-masked]>
Date: Fri, 28 Mar 2003 09:54:44 -0500

> 	and its follow on restrictions.

Bill,

In theory, the Note Well added nothing to what was already in 
place.  Or, put differently, it, like the efforts of this WG, 
merely clarified 2026 and associated practices.  Having been 
partially responsible for it in a previous life, I'll admit that 
it pushed the notion of "clarification" fairly hard.  But the 
theory behind 2026 was "if you intend to play, then you must 
disclose".  The "Note Well" was intended to clarify that one 
could not, e.g., come into a WG, suggest a technology on which 
one had restrictive IPR rights and intentions, get someone 
unaffiliated to write an I-D that involved the technology, say 
nothing about the IPR claims, argue strenuously for the 
technology, and then yell "gotcha" as soon as a standard was 
adopted.

It was also inspired by the desire to avoid the "WGs have an 
explicit membership and you must sign this application and 
agreement before participating or getting access to working 
documents" model that is prevalent in most standards-development 
organizations today.

If it has impacts more serious than that, or if you (or others) 
see ways to accomplish the ends with less restrictive 
arrangements, it seems to me that ought to be part of the 
discussion in this WG.  After all, we are supposed to be 
clarifying the sections of 2026 that "Note Well" is also 
supposed to clarify, so the possibility of conflicting 
clarifications ought to be fair game.

     john

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 28 Mar 2003 16:11:30 +0100

Keith Moore wrote:
...
> toward RF licensing even though they do not believe it is best for the

I think we're missing a point here. Even people who would prefer there
to be a full suite of OSS/RF Internet software are supporting the present
IETF policy - because we all have to live in a world with intellectual
property laws, and they set a context within which we have to work
pragmatically.

Some people may not like those laws in their present form, but trying to
change them by adopting a self-defeating standards IPR policy would
be purely Quixotic.

   Brian

   Brian

---

From: Russell Nelson <[email-masked]>
Date: Fri, 28 Mar 2003 10:23:29 -0500

Spencer Dawkins quotes:
 > > ... if something is not true, then the logical negation must be
 > > true.  

Um, yeah, right.  Well, okay, maybe not.  Sorry for wasting people's
time there.  As a description of the process, it's probably more
accurate to say that the IETF MAY put a patent into a standard.  In
any case, you're quite right.  Arguing is not the way forward.  I'm
not even sure that trying to change the IETF is the way forward.  In
any case, I'll shut up, and apologize again for wasting your time.

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 28 Mar 2003 16:41:14 +0100

> The current drafts are not changing this status quo.

Further, I think that many cases where patent disclosures show up
in the IETF are actually due to late and largely accidental
discoveries of existing patents. I think there are very few cases
(but certainly more than zero) where patents are being actively
sought by the same people who are working on the draft. The only
effect of a policy change on this is that those few particpants
would be ethically obliged to leave their WG and send in their
royalty claims later.

The current policy makes it much more likely that claims are
discovered early enough for the WG to work around them.

   Brian

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 28 Mar 2003 16:47:42 +0100

Russell Nelson wrote:
...
> that the IETF is in a position to help correct the patent system, 

This is an amazingly naive view of the political, economic, and legal
system. Even if one believes that the patent system needs correcting,
the notion that a standards body can be a significant change agent is 
hubristic.

   Brian

---

From: Markus Levlin <[email-masked]>
Date: Fri, 28 Mar 2003 17:42:20 +0200 (EET)

> So the IETF is just a *little* bit pregnant, then?

And your point is? Never mind.

> Patent holders know that the IETF WILL NOT put their patent into a standard.

Oh, the power of twisted logic - it's just that both of these statements
are profoundly false. See also Keith's answer.

> going to be a LOT more nuclear plants built."

As I said in another mail, encumbered IETF standards haven't exactly
stopped the avalanche of open source. Yes, there is lot of fear and
pessimistic scenarios abound among oss developers. I just don't equate
fear and talk with actual hard problems.

> an ever-increasing pace.  We're talking positive second derivative

The second derivative effect is not going to prevent the folks who are
strongly against encumberances from participating in the IETF.

> put an royalty-bearing patented technology into a standard?

Keith and many others have flogged this particular horse many times
already. Advocacy is of an absolute nature, but good engineering has to
consider more than just one issue. IETF is an engineering outfit.

Markus Levlin

---

From: Scott W Brim <[email-masked]>
Date: Fri, 28 Mar 2003 11:04:20 -0500

o, if you were hoping to convince me to hummm "yes" - ARGUING
> I would have hummmed "yes" if it looked like we
> discussion. 

Me too.  

Chairs, would you be willing to ask for a different, parallel hum, on
Allen Lo's phrasing of the question? ...

  Should the IPR working group recharter at this time to investigate the
  existence (and the extent) of problems with the existing IPR policy?
_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: "Bob Wyman" <[email-masked]>
Date: Fri, 28 Mar 2003 11:08:57 -0500

Russell Nelson wrote:
> The whole point behind granting a monopoly is so 
> that inventors will be able to find investors.
	Wrong. The point of the system is to encourage innovation and to
increase the flow of new and innovative ideas into the public domain.
The inventor "pays" for the monopoly with a public disclosure of the
method that is usable by all once the monopoly expires. The monopoly
reduces competition and thus is meant the encourage innovators to take
the chance of pursuing new ideas. 
	The reduction of competition may make it easier for inventors to
find investors, but that is not the goal of the system. It is simply a
consequence of the reduction of competition. The "investment" that the
system is intended to encourage is the mental and creative investment
required by the process of innovation.

>Bob, if you want to argue for change in the patent system
	My feelings about the patent system are irrelevant to this
discussion. While I have a very long list of problems that I think
should be addressed, the issue here is what the IETF's policy should be
-- given the patent system as it exists or is likely to exist any time
soon.  As far as that goes, I think the IETF, in order to best address
the needs of the community, must be free to incorporate encumbered
technologies into standards in those rare cases where it can be
established that the benefit of doing so out-weighs the restrictive
effects of any applicable royalties. 
	I believe that those who are against the use of encumbered
technologies at all costs would better serve their interests by actively
proposing and developing unencumbered technologies in any working groups
that may be appear to be relying encumbered methods. A general and
absolute anti-patent policy cannot stand in the IETF. This issue should
be dealt with at the WG level on a case by case basis.

		bob wyman

---

From: Bill Manning <[email-masked]>
Date: Fri, 28 Mar 2003 08:26:21 -0800 (PST)

(being dangerous close to exceeding my self imposed limit for interacting
with unknown legal entanglements of the strictures of RFC 2026 and the
"Note Well" doctrine, I'll toss this idea out for consideration by better
legal minds than mine.)

to wit;   there has evolved a common practice to use "humming" to help
guage consent for a particular point of view within IETF face2face mtgs.

This practice has evolved to being used on mailing lists such as this one
to help the WG chairs decide on the desirability to take up certain actions.
Folks on the list are "humming" in either the affirmative, the negative, or
are not expressing an opinion.

Now the question.  Would this behaviour, strictly from a legal perspective,
be considered voting?

--bill

---

From: Russell Nelson <[email-masked]>
Date: Fri, 28 Mar 2003 11:34:35 -0500

> are not expressing an opinion.

Yes, in spite of the fact that Steve asked everybody (!) to express an
opinion, one still sees list members contributing who have not yet
expressed an opinion.

 > Now the question.  Would this behaviour, strictly from a legal perspective,

Can't answer your question.  Not a lawyer.  What the chairs are doing
is getting the sense of the meeting.

---

From: "Steven M. Bellovin" <[email-masked]>
Date: Fri, 28 Mar 2003 11:57:52 -0500

>  existence (and the extent) of problems with the existing IPR policy?

For two reasons, I don't think that that would be wise.  For one thing, 
to quote Harald's post from yesterday,

   Having a still-open WG that has no deliverables, no milestones and no 
   charter except "further study" is not something that fits with my 
   understanding of the IETF process.

For another, I don't want to confuse the question.  The question that 
Rob and I asked is dictated by the charter:

   If there consensus of the working group for a different IPR policy
   than the one described in RFC 2026, the working group will seek to
   amend its charter to make it clear that it is changing the status quo.

That doesn't mean the IETF can't do something else to address the further 
question.  In fact, Harald, Rob, and I are discussing how best to 
accomplish that.  I don't think that anyone, on either (or any) side of 
the patent question, thinks that we've made much progress towards 
harmony (with the notable exception of the text in Section 8 of 
draft-ietf-ipr-technology-rights that explicitly notes the historic
preference of IETF working groups for unencumbered technologies).
Would a simple debating forum be useful?  I personally don't think so -- 
it just serves to harden positions.

So -- I would welcome constructive suggestions on what sort of 
structure might actually accomplish something.

		--Steve Bellovin, http://www.research.att.com/~smb (me)
		http://www.wilyhacker.com (2nd edition of "Firewalls" book)

---

From: [email-masked] (Bruce Perens)
Date: Fri, 28 Mar 2003 09:07:51 -0800 (PST)

From: Brian E Carpenter <[email-masked]>
> the notion that a standards body can be a significant change agent is 

Not at all. Members of the patent policy boards of standards organizations
have been called to testify at U.S. government hearings regarding
the topic of patents and standards. I know that Danny Weitzner has
been called, I'm not sure who the others were. My participation in
this activity at W3C has involved me in meetings with congress people
and bureaucrats in the U.S., ministers and bureaucrats of foreign
governments and the E.C. It's also the subject of a good deal of academic
study, which is input to government planning.

Many of the government folks made it clear that they considered the work
at W3C to be very important to their future policy decisions.

And of course this makes it even sadder that IETF has so far refused to deal
with the issue.

	Thanks

	Bruce

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 28 Mar 2003 18:45:17 +0100

"Steven M. Bellovin" wrote:
> For two reasons, I don't think that that would be wise.  

I agree with Steve's reasoning. I really think this will be a question
worth examining about a year from now, when we have settled down with
the clarified documents. And of course we'd have to frame the question
very precisely at that time.

   Brian

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Fri, 28 Mar 2003 09:49:16 -0800

Brian Carpenter wrote:
> This is an amazingly naive view of the political, economic, 
> and legal system. Even if one believes that the patent system 
> needs correcting, the notion that a standards body can be a 
> significant change agent is 
> hubristic.

Now you are insulting those of us who have been deeply involved in this
issue and whose perspective is far broader than the IETF.  

I refer you to "The Standards Edge," a recent publication of papers on
this and related topics by leaders of industry standards activities, as
well as legal scholars and attorneys working on these topics.  It is
published by Bolin Communications, 510-655-2293, or email to
[email-masked].  Many perspectives are expressed in this book; it is
NOT an open source tract, which might reassure those of you who believe
we are out to convert you to a religion.  

One of the reasons I've stopped speaking out on this list is that people
have stopped listening.  That's unfortunate, because many of the people
who are expressing such strong views haven't much of a clue what they're
talking about.  

/Larry

---

From: Zenaan Harkness <[email-masked]>
Date: 29 Mar 2003 10:20:27 +1100

> systems and software, frankly.

What/ who/ why does this help?

---

From: "George Willingmyre" <[email-masked]>
Date: Fri, 28 Mar 2003 17:57:57 -0500

The   exchange between Brian and Bruce caused me to learn a new word

Hubristic:
excessive ambition: the excessive pride and ambition that usually leads to
the downfall of a hero in classical tragedy

I dont think it hubristic that the IETF along with ISO/IEC; CEN/CENELEC;
IEEE; W3C; ETSI; ITU; ECMA; ANSI understand their policies will be seen as
models that many other groups  will contemplate in building their  own IPR
polices.  These handful of organizations are the global trend setters.  At
least that is what I conclude in
Intellectual Property Rights Policies of selected   standards developers May
2002 at http://www.gtwassociates.com/answers/IPRpolicies.html

Here is a page with links to the hearings Bruce mentions.    FTC and DOJ
cooperated during 2002 in a series of hearings entitled  Competition and
Intellectual Property Law and Policy in the Knowledge-Based Economy. A
number of the hearings focused in particular on IPR and standards setting
and Antitrust.  Expect a report out sometime this year .
http://www.gtwassociates.com/alerts/FTCDOJHEARINGS.htm

George T. Willingmyre, P.E.
President
GTW Associates
1012 Parrs Ridge Drive
Spencerville, MD 20868  USA
301.421.4138  fax 301.421.0977
http://www.gtwassociates.com