Subject: I-D ACTION:draft-ietf-ipr-technology-rights-02.txt

From: [email-masked]
Date: Thu, 06 Mar 2003 06:26:53 -0500

A New Internet-Draft is available from the on-line Internet-Drafts directories.
This draft is a work item of the Intellectual Property Rights Working Group of the IETF.

	Title		: Intellectual Property Rights in IETF Technology
	Author(s)	: S. Bradner
	Filename	: draft-ietf-ipr-technology-rights-02.txt
	Pages		: 14
	Date		: 2003-3-5
	
The IETF policies about intellectual property rights (IPR), such as
patent rights, claimed relative to technologies developed in the IETF
are designed to ensure that IETF working groups and participants have
as complete information about any IPR constraints on a technical
proposal as possible.  The policies are also intended to benefit the
Internet community and the public at large, while respecting the
legitimate rights of IPR holders.  This memo details the IETF
policies concerning IPR related to technology worked on within the
IETF. It also describes the objectives that the policies are designed
to meet.

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---

From: Florian Weimer <[email-masked]>
Date: Fri, 07 Mar 2003 21:00:31 +0100

> 	Filename	: draft-ietf-ipr-technology-rights-02.txt

The requirements set forth in this draft effectively exclude people
without a cooperating legal department from contributing to the IETF
standardization process.  This includes a substantial part of the
academic community.

If this is the only other option, the IETF will be better off with
living with the current uncertainty in IPR matters, IMHO.
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---

From: Scott W Brim <[email-masked]>
Date: Fri, 7 Mar 2003 15:20:41 -0500

> living with the current uncertainty in IPR matters, IMHO.

If your legal department is uncooperative, I don't think you should look
to the IETF to solve your problem. :-)

There is justifiable concern for people who have no legal department at
all, and thus have trouble evaluating IPR assertions.  That also extends
beyond the IETF, but directly affects the IETF process.
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---

From: Florian Weimer <[email-masked]>
Date: Fri, 07 Mar 2003 22:42:23 +0100

Scott W Brim <[email-masked]> writes:

> If your legal department is uncooperative, I don't think you should
> look to the IETF to solve your problem. :-)

8-) But I guess such problems aren't atypical.

Actually, I misread the draft.  It's not as bad as I think.
Participation in the IETF might make you liable personally, but not
your organisation as a whole.  And I think it's always been like that.
(If participation of you as an employee imposes anything related to
IPR on your employer, you are screwed, because your employer won't let
you participate if he realizes this.)
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---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Fri, 7 Mar 2003 19:07:24 -0800

> Participation in the IETF might make you liable personally, 
> but not your organisation as a whole.  And I think it's 
> always been like that. (If participation of you as an 
> employee imposes anything related to IPR on your employer, 
> you are screwed, because your employer won't let you 
> participate if he realizes this.) 

Your employer is responsible for the actions of you as an employee
acting in the course and scope of your duties for them, regardless of
what the IETF policy says.  That's pretty much black letter law.  I've
personally litigated several cases relating to that (not concerning IPR,
but that's a nit), and won.  Among the torts for which a company can be
responsible are negligent hiring and negligent supervision, as well as
business torts and fraud.

/Larry Rosen

---

From: Russell Nelson <[email-masked]>
Date: Fri, 7 Mar 2003 23:10:14 -0500

Lawrence E. Rosen writes:
 > what the IETF policy says.

So are you saying that this document is an exercise in reality denial?
What's the point of writing it, then?

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---

From: Keith Moore <[email-masked]>
Date: Sat, 8 Mar 2003 01:48:36 -0500

On Fri, 7 Mar 2003 19:07:24 -0800

> what the IETF policy says. 

Larry thinks he dictates IETF policy.  Don't listen to him.

Keith

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Fri, 7 Mar 2003 23:05:28 -0800

>  > Your employer is responsible for the actions of you as an 
> employee  > acting in the course and scope of your duties for 
> them, regardless of  > what the IETF policy says.
> 
> So are you saying that this document is an exercise in 
> reality denial? What's the point of writing it, then?

There's good point to writing it if it helps us understand what the
current IETF patent policy really is.  As I now understand the IETF
process, that's all the authors of the draft are trying to do.  I agree
that it is necessary, but I do not believe it is sufficient, to document
what is.  

I'm trying to raise consciousness about far more serious problems facing
IETF and other standards organizations.  Patent policies must reflect
economic, technical and legal reality.  

For one, patent policies must now reflect the enormous growth in
software and business method patents since the US PTO began to issue
them.  Within a year of the 1988 U.S. Supreme Court decision opening the
door to software and business method patents, the U.S. Patent and
Trademark Office (PTO) received 2,600 business method patent
applications and issued 600 patents on prior applications.  By 1999,
there were 15,000 software patent applications on file at the PTO.  The
PTO issued 1,016 Internet and network-related patents in 1998.  

For another, we are no longer in a world where large proprietary
software vendors control both the patents and the software.  Much new
software comes from the open source community and small software
companies that have no patents to speak of.  Meanwhile large companies,
not all of them friendly to open source software, control the bulk of
the patents.  IBM is the big gorilla of the patent zoo.  That technology
company has obtained more than 27,000 patents in the United States since
1986.  To better visualize the scale of IBM's patenting efforts, last
year alone IBM received more patents than Microsoft has in its entire
portfolio.  Not that Microsoft is sitting still.  They only started
their major patent efforts in the late 1990s, but now the software giant
has over 2,400 of them (1,322 in the last three years alone).  There are
tens of thousands of other patents issued to technology companies in the
United States alone each year.  

Anyone who believes that IETF can remain an engineering island in a sea
of intellectual property claims is living on Fantasy Island.  And as I
pointed out in an earlier email, anyone who believes that individual
IETF participants can shield themselves or their companies from the
coming battles over patents on standards is smoking illegal substances.

So let the current drafts proceed to IETF review.  Just don't stop
there.  Get on to the real business of developing a meaningful and
effective patent policy immediately thereafter.

/Larry Rosen

---

From: Russell Nelson <[email-masked]>
Date: Sat, 8 Mar 2003 08:10:08 -0500

> Larry thinks he dictates IETF policy.  Don't listen to him.

Larry thinks the law trumps IETF policy.  Don't listen to him if you
think you don't have to comply with the law, or if the law is
different where you are.

---

From: Keith Moore <[email-masked]>
Date: Sat, 8 Mar 2003 08:50:10 -0500

> think you don't have to comply with the law, or if the law is

Larry has made it clear that dictating IETF patent policy according to his
terms is more important to him than IETF's organizational goals or IETF's
effectiveness at working toward those organizational goals, or even IETF's
demonstrated effectiveness at making standards that OS implementors can use. 

Of course the only truly reliable measure of whether a statement about the law
was accurate is what a court decides in specific circumstances.  But
personally I have more confidence in the opinion of my own counsel, or IETF's
counsel, than in that of someone who has essentially stated an intention of
harming IETF.

Keith

---

From: Russell Nelson <[email-masked]>
Date: Sat, 8 Mar 2003 13:50:54 -0500

Keith Moore writes:
 > Of course the only truly reliable measure of whether a statement
 > about the law was accurate is what a court decides in specific
 > circumstances.  But personally I have more confidence in the
 > opinion of my own counsel, or IETF's counsel,

Then ask them if Larry is correct.  Don't believe Larry.  Ask the
lawyers you trust.  And then ask yourself: should this WG write down a
policy which is legally unsound without saying as much?

---

From: Keith Moore <[email-masked]>
Date: Sat, 8 Mar 2003 14:24:23 -0500

> policy which is legally unsound without saying as much?

Be assured that IESG will not approve anything that IETF's counsel 
finds legally unsound.

Keith

---

From: Brian E Carpenter <[email-masked]>
Date: Sat, 08 Mar 2003 14:14:11 +0100

> you participate if he realizes this.)

Many employers are fully respectful of the IETF IPR rules.
It is true that an individual whose employer is not respectful of
those rules has a dilemma, or a level of personal risk.

   Brian

---

From: Brian E Carpenter <[email-masked]>
Date: Sat, 08 Mar 2003 14:14:11 +0100

Florian Weimer wrote:
> your organisation as a whole.  And I think it's always X-Mozilla-Status: 0009 participation of you as an employee imposes anything related to

   Brian