Subject: RE: I-D ACTION:draft-ietf-ipr-wg-guidelines-02.txt (another plea for 30 month preference)

From: Powers Chuck-rxcp20 <[email-masked]>
Date: Tue, 11 Mar 2003 08:33:37 -0700

The use of the term "legal" in this discussion is rather deceiving. You could ask the question the other way around: "is it _illegal_ to implement this standard?" and the likely answer would still be 'no'.

Simply because one does not _want_ to acquire a license for some patented technology in a standard (whatever the terms may be) doesn't mean that one cannot acquire the license to do so, or that it is therefore illegal for the standard to be implemented. It just requires you to give something back in return to someone else who innovated. Let's not to equate the legality of doing something with the decision by some not to meet the terms necessary to do something.

I know, I know, there are lots of folks out there who feel philosophically that the two are in fact the same, but today, in the U.S. and the RoW (as far as I can tell), they are not.

chuck

> -----Original Message-----
> From: [email-masked] [mailto:[email-masked]]
> Sent: Tuesday, March 11, 2003 9:01 AM
> To: [email-masked]; [email-masked]; [email-masked]
> Cc: [email-masked]; [email-masked]; [email-masked]; 
> [email-masked]
> Subject: Re: I-D ACTION:draft-ietf-ipr-wg-guidelines-02.txt (another
> plea for 30 month preference)
> 
> 
> From: Scott Bradner <[email-masked]>
> > so *every* standard the IETF works on will be not be "legal to
> > implement"?
> > 
> > that seems to be a rather extreme assertion 
> 
> Look at it this way: can we, with any confidence, positively 
> answer the
> question "is this standard legal to implement?" The 
> increasing degree of
> patent litigation in the standards space, and of software 
> patent litigation
> in general, makes it increasingly likely that the answer is 
> "no" for any
> particular implementor. At some point in the near future, that lack of
> confidence becomes a business-blocker for any small or medium-sized
> enterprise.
> 
> Our duty is to improve the confidence level that our 
> standards are legal
> to implement as much as possible, using the resources 
> available to us in
> reasonable time. This means we start by addressing this in 
> our own rules
> and processes. Once we've done as much as we can within the existing
> legal framework, I think it's time to go for legislation to 
> resolve the
> rest of the problem.
> 
> 	Thanks
> 
> 	Bruce
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---

From: Russell Nelson <[email-masked]>
Date: Tue, 11 Mar 2003 11:16:10 -0500

Powers Chuck-rxcp20 writes:
 > The use of the term "legal" in this discussion is rather
 > deceiving. You could ask the question the other way around: "is it
 > _illegal_ to implement this standard?" and the likely answer would
 > still be 'no'.

Is it illegal to drive a car without a license?  Yes.  Is it illegal
to implement a standard containing patented ideas without a license?
Yes.  The whole point behind having a standard is to get everyone on
the same page.  You can't do that if some people can't get a license
for the ideas in the standard.

That's why the IETF has a policy of standardizing on technology which
does not need to be licensed.  Failing that, the IETF seeks a license
which allows everyone to get on the same page.  Everyone is agreed
that that is the correct course of action.  The disagreement comes
when the ideas cannot be licensed under those terms, or when ideas
that were thought to be obvious turn out to have been much more subtle
(and patented) than anyone could have imagined.  What do you do then?
Kick people out of the IETF?  Kick the patent out of the standard?
Withdraw the standard?  Go for a patent buy-out (but that just
encourages the bastards)?  Document the existance of the patent and
move on?  None of these are obvious choices, and they deserve to be
discussed.  Not here, now, until after re-chartering (for which I'm
100% in favor of).

 > It just requires you to give something back in return to someone
 > else who innovated.

If that's actually what happened, you would see much less resistance
to the patent system in general, and software patents in particular.
Of course, any person having ordinary skill in the art can see that
obvious ideas are being patented.  For example, TechSearch's supposed
patent on putting HTML files on CD-ROMs.  It just doesn't pass the
"well, duh" test.

-- 
-russ nelson              http://russnelson.com | "What Problem Are You Trying
Crynwr sells support for free software  | PGPok | To Solve?" is a service mark
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---

From: [email-masked] (Bruce Perens)
Date: Tue, 11 Mar 2003 08:45:09 -0800 (PST)

From: Powers Chuck-rxcp20 <[email-masked]>
> Simply because one does not _want_ to acquire a license for some patented
> technology in a standard (whatever the terms may be) doesn't mean that one
> cannot acquire the license to do so

It's easy to postulate a scenario in which there is no legal path in
which to proceed. It's not unlikely that a license could present us
with a 5% royalty requirement, when we've already been burdened with
19 similar requirements. Tim Berners-Lee did a talk in which he
demonstrated that such a thing is not unlikely, since 30 standards
underly any click of a web browser.

	Thanks

	Bruce