Subject: RE: RF policy helps achieve unencumbered standards?

From: [email-masked]
Date: Tue, 22 Apr 2003 18:10:15 -0400

> On Tue 22 Apr 03 23:10, Bob Wyman wrote:
> > Daniel Phillips wrote:
> > > a RF policy would ...
> > > only prevent the adoption of a standard known to be encumbered
> > > with non-RF licenced IP.  That is, it would prevent exactly
> > > what everybody wants to prevent, and nothing else.
> >
> > 	Such a policy would prevent more than "nothing else." An
> > absolute RF policy would prevent the development of standards which
> > incorporated methods for which non-encumbered variants either are not
> > known or are not considered reasonable by the WG. This would be wrong.
> 
> Why, yes, that is correct: it would uphold a principle that nobody should
be 
> able to charge toll on a standard promoted by the IETF, and that is the
crux 
> of the question.

Even when it results in a solution that is technically inferior in
significant ways that cause real problems for usage of the resulting
technology??  See RFC 1915 and the RSA patent for real examples.  These
unusual cases (they are rare - IETF culture and policy makes them rare)
are the crux of the counterargument against an absolute RF policy.

> Unfortunately, that is not what Keith Moore is arguing.  He argues that a
RF 
> policy would allow an unscrupulous player to delay or prevent the
> introduction of any IETF standard, not just one on which they own an 
> essential patent.

If adoption of a standard can be stopped cold on procedural grounds by
the existence of a patent whose holder claims it is "essential", the DoS
attack is possible.  The IETF does not want to change its current position
of not taking a formal position on validity or invalidity of patents, hence
there won't be WG drafts of the form "we looked at this patent and believe
it is invalid and/or inapplicable to this standard" (can you spell "massive
legal liability"?).  If you have a solution to stopping this DoS attack
from a silly patent without taking a formal position on the patent (assume
the patent holder has many megabucks and a track record of aggressive
litigation), please tell us - I haven't seen one.  The W3C solution
appears to be that the PAG takes a position and accepts the resulting
liability - the first "test case" when the W3C gets sued by a patent
holder who disagrees with the PAG's conclusion on patent applicability
will be very interesting ... AFAIK, the ISOC is not in a position to
provide the IETF with the legal wherewithal to follow anything remotely
resembling that approach.

> > 	The IETF IPR policy must allow enough flexibility to permit
> > standards development whenever it is considered useful.
> 
> Yes.  It comes down to the definition of "useful".  I thought it was
already 
> established that patented IETF standards are not useful, because they
cannot 
> be generally implemented.

Uh, no, sorry.  RSA was implemented and widely used in Apache prior
to the patent expiring.  Facts can be so inconvenient ...

Thanks,
--David
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David L. Black, Senior Technologist
EMC Corporation, 176 South St., Hopkinton, MA  01748
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---

From: [email-masked] (Bruce Perens)
Date: Tue, 22 Apr 2003 17:05:55 -0700 (PDT)

From: [email-masked]
> to the patent expiring.  Facts can be so inconvenient ...

There were no legitimate Open Source implementations. I remember having
to pay an awful lot to Red Hat for a licensed version, even though I was
never going to use the Red Hat software, and in fact I don't run Red
Hat.
	Bruce
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