Subject: A thought about a possible new policy

From: Pekka Savola <[email-masked]>
Date: Thu, 3 Apr 2003 21:47:03 +0300 (EEST)

Hi,

People have asked to see ideas for new IPR policies.  Well, here's one 
half-baked idea.

First, my assumption/belief is that many companies see IETF's IPR policy
as rather flexible (after all, it gives power to w.g.'s to make
determinations etc.) -- at least in theory.

So, here comes the idea: we need to make the IETF look more rigid in the
IPR policy while retaining some form of well-controlled flexibility to
cover for the cases it may be required.  In addition, we need to work on 
reasonable RF terms and/or templates to make RF licensing as easy and 
non-controversial as possible for all parties.

Why rigidity?  We need to ensure that IETF's overall IPR policy stays 
quite strict, and exceptions stay as exceptions; also, this gives a signal 
to the companies that cashing on IPR will be unsuccessful.

Why controlled flexibility?  Complete RF policy would likely require too
many changes.  And there are cases that need to be dealt with: DoS
attacks, blanket statements, truly important exceptions when no
alternatives exist (e.g. prior patents on all public key infrastructure)  
which need to be considered, etc.

Why RF templates?  W.g.'s must have some idea that when some company 
offers RF licensing, one can more or less trust that; licensing RF should 
also be as simple to the company as possible.

Therefore, an idea occurred to me:

1. For all technologies where essential patents and RF terms are not 
available, after IESG review (but before publication) the issue is given 
to IAB.  IAB will determine whether the specification is so important it 
requires standardization anyway.  IAB may be assisted in this decision by 
at least a 2-week long IPR last call.

2. For all technologies where relevant patents and RF terms are not 
available, an IETF last call is always required.  Such last calls formats 
are modified so that it clearly states the status of the IPR claims and 
associated facts, so that those who have issues with this can notice it 
easily and comment if appropriate.

IAB or IESG may, if appropriate, start a body like a directorate whose
task is to examine and evaluate the validity claims in case 1 above, based
on community, working group, vendor, etc. feedback.

How does it sound?

At the very least, I believe point 2 above would seem an appropriate
addition to IETF last calls today, and would not even require any new
policy as such.

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

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From: Spencer Dawkins <[email-masked]>
Date: Thu, 3 Apr 2003 13:37:11 -0800 (PST)

Dear Pekka,

Speaking only for myself, you may be batting .500 on this
thought:

> at least a 2-week long IPR last call.

This is WAY too late in the process for a surprise. The
Problem-Statement working group is already worried about late
surprises. This part of your idea adds a potential late surprise
to the END of the process. I hummm "no" on this half.

> addition to IETF last calls today, and would not even require

While it is theoretically possible to publish RFCs without IETF
last calls, these cases are most often April 1 RFCs, not
standards-track. So I read this half of your idea as "all
standards-track RFCs go through last-call anyway, so just
include a statement from the working group on KNOWN IPR status
as part of the last-call announcement, and let the normal
process include any concerns on this topic."

This seems very reasonable to me - it adds virtually no weight
to the process, requires no new mechanisms, calls attention to
the issue outside the working group at an appropriate time, and
probably encourages the working group to discuss it explicitly
before last-call time. I would hummm "yes" on this half.

Establishing a directorate to pass judgement on the validity of
IPR claims is not a direction that the IETF is likely to go, I
expect, but someone who can speak for the IETF can address that
topic ...

Spencer

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From: Brian E Carpenter <[email-masked]>
Date: Fri, 04 Apr 2003 15:38:45 +0200

Indeed, in the past our legal advice was always to keep the IETF
out of the business of judging the acceptability of licensing
conditions, or the essentiality of patents. There are
many risks along that path.

That being said, and accepting Spencer's point about it being
late in the process, being explicit about the existence of IPR
claims in Last Call messages does seem reasonable to me.

  Brian

---

From: Pekka Savola <[email-masked]>
Date: Fri, 4 Apr 2003 17:42:59 +0300 (EEST)

On Thu, 3 Apr 2003, Spencer Dawkins wrote:
> > available, after IESG review (but before publication) the issue is
> > given to IAB.  IAB will determine whether the specification is so
> > important it requires standardization anyway.  IAB may be assisted in
> > this decision by at least a 2-week long IPR last call.
> 

I completely agree it's too late.  But late is better than never.  You
typically do not have knowledge of IPR at hand when e.g. forming working
groups.

In practice, this would be pre-emptive: WG's would start looking real hard
into these issues early on *because they'd know that it would have a
potential for causing serious delays and much more work when "finished"*
if they didn't -- which was indeed one reason for this kind of mechanism:  
prevent the problem from happening in the first place.

> > available, an IETF last call is always required.  Such last calls
> > formats are modified so that it clearly states the status of the IPR
> > claims and associated facts, so that those who have issues with this
> > can notice it easily and comment if appropriate.
> > 
> > task is to examine and evaluate the validity claims in case 1 above,
> > based on community, working group, vendor, etc. feedback.
> > 
> > How does it sound?
> > 

I was also referring to non-stds track RFC's, like experimental RFC's from 
working groups (for such, a last call is not required), but in practise, 
pretty close.
 
> This seems very reasonable to me - it adds virtually no weight to the
> process, requires no new mechanisms, calls attention to the issue
> outside the working group at an appropriate time, and probably
> encourages the working group to discuss it explicitly before last-call
> time. I would hummm "yes" on this half.

Yep, seemed like an easy addon which might let those who might have 
problems with IPR-encumbered technology to react better at last calls.
 
> expect, but someone who can speak for the IETF can address that

These decisions are already made at the working groups, in the context of 
"this is dubious patent assertion with likely prior art, let's ignore it", 
so I'm not sure if that's really a problem.

I totally agree that IETF taking (legal) responsibility here would be a 
very bad thing, with extreme potential liabilities.  But this is really 
not different from what's being done today, only at a different level.

---

From: Spencer Dawkins <[email-masked]>
Date: Fri, 4 Apr 2003 07:44:39 -0800 (PST)

Hi, Pekka,

I think we're in enthusiastic agreement here - just to clarify a
point I was vague on:

> prevent the problem from happening in the first place.

I actually thought about sending this as a followup earlier this
morning:

- I agree that that explicit discussion of IPR considerations
during IETF last call would have a positive impact on working
group consideration of IPR prior to IETF last call ("earlier
suprise, and hopefully less surprise"), 

- I don't see how it would slow down or obstruct anything we're
doing today, and 

- I don't think adding anything more formal than a one-paragraph
summary at Last Call time would help further.

Spencer

-