Subject: RF policy helps achieve unencumbered standards?

From: Daniel Phillips <[email-masked]>
Date: Thu, 17 Apr 2003 00:05:38 +0200

Would anyone care to comment on the accuracy of this:

   (http://zdnet.com.com/2100-1107-997082.html)
   For years, participants in standards-setting processes have been obtaining 
   patents on technology incorporated into standards, and routinely charging 
   royalties to all users. The World Wide Web Consortium decided to make 
   itself an exception. Last fall, it all but formally adopted a policy of 
   requiring contributors to make IP available on a royalty-free basis.

   Almost immediately, Epicentric, a unit of Vignette that earlier had 
   claimed patent coverage relevant to a W3C standard, backed off its threat 
   to charge royalties under the patent.

The implication being that a clearly stated RF policy has a positive effect 
on achieving unencumbered standards.

Regards,

Daniel
_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: [email-masked] (Bruce Perens)
Date: Wed, 16 Apr 2003 15:26:28 -0700 (PDT)

From: Daniel Phillips <[email-masked]>
> on achieving unencumbered standards.

I would think it's obvious.

He missed two critical points in his article, however:

Lawsuits will be brought not with intent to collect money for
infringement, but with the intent of restraining the Open Source
developer from further developing and distributing the software.
Essentially, one need only take an individual Open Source developer
to court for a few days, until he runs out of funds, and then he'll
be forced to settle.

You generally can't work around a software patent that is embedded in
a standard and remain compliant with the standard.

	Thanks

	Bruce

---

From: Keith Moore <[email-masked]>
Date: Wed, 16 Apr 2003 20:01:49 -0400

> on achieving unencumbered standards.

uh, no.  first because one case is an insignifcant sample size; second because
there's no control group for comparison (other than a vague reference to
"particpants in standards-setting processes"); third because a lot hinges on
details which this article omits; fourth because it's way too early to assess
the effect that w3c's policy has had.
_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: Daniel Phillips <[email-masked]>
Date: Thu, 17 Apr 2003 02:12:40 +0200

On Thu 17 Apr 03 02:01, Keith Moore wrote:
> > The implication being that a clearly stated RF policy has a positive
> > effect on achieving unencumbered standards.
>
> uh, no.  first because one case is an insignifcant sample size; second
> because there's no control group for comparison (other than a vague
> reference to "particpants in standards-setting processes"); third because a
> lot hinges on details which this article omits; fourth because it's way too
> early to assess the effect that w3c's policy has had.

Sorry, but this just popped into my head:  Stand on track.  Watch train 
approaching.  Fly rapidly backwards through the air.

  1) Sample size of one
  2) No control group
  3) A lot hinges on the detail that a train is approaching
  4) One would be able to make an early assessment of resulting damage,
     if one were not already dead.

:-)

Regards,

Daniel

---

From: Keith Moore <[email-masked]>
Date: Wed, 16 Apr 2003 20:20:25 -0400

>      if one were not already dead.

hey, if you want to ignore the laws of physics and well-established 
knowledge from physiology and materials science, feel free.

but pretending that patent laws or the behavior of IPR holders are as
predictable as the physical behavior of matter is sheer artifice.

---

From: Daniel Phillips <[email-masked]>
Date: Thu, 17 Apr 2003 14:31:12 +0200

> predictable as the physical behavior of matter is sheer artifice.

There we apparently disagree, because I do find this quite predictable:

  - The vast majority of internet users know why patent-encumbered internet
    standards are bad, and do not want them.

  - A few people represent special interests that do want patent-encumbered 
    internet standards, and such people tend to make up a disproportionate
    share of membership in standards-making organizations, and particularly,
    in working groups on IP policy.

  - The resulting collisions are predictable.

Regards,

Daniel

---

From: Brian E Carpenter <[email-masked]>
Date: Thu, 17 Apr 2003 16:50:30 +0200

Daniel,

Scott demolished one of your arguments. I'd like to demolish the
other.

Daniel Phillips wrote:
...
>     in working groups on IP policy.

If you care to review the discussions on this list, you will find
that many of those articulating support for the current IETF policy don't
work for significant IPR owners and are in fact very much in favour of
liberal access to software. Personally, I currently work for a company
that is a significant IPR owner, so I suppose you will automatically
discount my personal opinion that the IETF policy is the most reasonable
and pragmatic one in the economic and legal regime that we inhabit. 
You may also choose to discount the fact that my employer is also a
major supporter of and contributor to Linux. The world is not as
simple as some people like to think, and one size doesn't fit all.

It's also my personal opinion that a standards body is not an effective
place in which to influence the economic and legal regime. I think that
people who want regime change should be tackling this as a political
problem. 

   Brian

---

From: Daniel Phillips <[email-masked]>
Date: Thu, 17 Apr 2003 17:30:38 +0200

On Thu 17 Apr 03 16:50, Brian E Carpenter wrote:
> Daniel,
>
> Scott demolished one of your arguments.

What, you mean with:

   > Do you need more evidence than this:

   with a few 100 million people on the Internet - yes, quite a bit more
   to accept your claim that the "The vast majority of internet users" have
   any opinion on anything

Excuse me, but I considered that response so weak as to not require a 
rebuttal.  The (self-evident) rebuttal is that the portioin of the internet 
public that became aware of the opportunity to comment on the W3C patent 
policy list was representative and significant, and the pattern of the 
responses was clearly evident.

> I'd like to demolish the other.

Good luck!

> Daniel Phillips wrote:
>
> ...
>
> >   - A few people represent special interests that do want
> > patent-encumbered internet standards, and such people tend to make up a
> > disproportionate share of membership in standards-making organizations,
> > and particularly, in working groups on IP policy.
>
> liberal access to software.

I disagree with you.  I did review the commentary, particularly the "Final 
Repost" thread, and I noticed a correlation between corporate email addresses 
and "no" votes.

> Personally, I currently work for a company

Yes, sorry.

> simple as some people like to think, and one size doesn't fit all.

IBM now subscribes officially to the position that some loss of proprietary 
control is acceptable, given the benefits that Linux brings.  IBM has been 
slower to realize that an analgous loss of control over IETF standards will 
bring similar benefits.

> people who want regime change should be tackling this as a political

Is somebody advocating a change in an economic or legal regime?  Not me.  I 
thought the discussion was about whether IETF should reexamine its policy of 
allowing RAND-encumbrance in its standards.

Regards,

Daniel

---

From: Ami Ganguli <[email-masked]>
Date: 17 Apr 2003 19:36:38 +0300

> Scott demolished one of your arguments. 

Nope, just qualified it.  

The fact that most users don't know enough about patents to have an
opinion doesn't negate the argument.  To do that you have to show that
users favour the IETF policy after they've educated themselves about the
issue.

> liberal access to software.

Again, you haven't made your point.  

Certainly the tone of patent discussions outside of the IETF is very
different from the tone here.  Also the tone of comments made to the W3C
on the issue was very different.  

There's a lot of evidence that this group doesn't accurately reflect the
views of most stakeholders.

... Ami.

-- 
Ami Ganguli <[email-masked]>

---

From: Brian E Carpenter <[email-masked]>
Date: Thu, 17 Apr 2003 17:56:30 +0200

Daniel Phillips wrote:
... 
<entrenched positions deleted>
... 
> allowing RAND-encumbrance in its standards.

No, because our co-chairs already declared consensus against chartering
the WG to do that. I don't know what you're advocating, but I do know that
it is the very existence of patent royalties applied to software products
that some people object to. It's my view that chasing patent holders 
away from standards bodies is a very ineffective way to tackle that issue.

   Brian

---

From: "Mark S. Edwards" <[email-masked]>
Date: Thu, 17 Apr 2003 16:59:54 +0100

Excuse me, but this thread is getting extra-ordinarily silly and some 
people are verging on ad hominem.

Rather than barrack from the wings at those who have trod a delicate and 
difficult path so far running this wg (to it's charter, rather than 15 
different agendas), why not do something productive ?  Such as sending an 
ID and organising a BOF on a new IPR approach.

The quicker this wg finishes it's chartered work, the easier it will be for 
a new IPR momentum to gather pace and no doubt descend into a new batch of 
flame wars.

Mark.

---

From: [email-masked] (Bruce Perens)
Date: Thu, 17 Apr 2003 09:25:59 -0700 (PDT)

From: Brian E Carpenter <[email-masked]>
> I think that people who want regime change should be tackling this as a
> political problem. 

This is a common ploy. Instead of solving a smaller problem that effects
us, we should solve the entire world's problems first, even though that
takes a tremendous amount of activity at the national government and
international treaty level. Not until then should we worry about our own
neighborhood.

Perhaps the next time you want to define an internet protocol, you
should have it passed as a treaty provision of the ITU. 

	Bruce

---

From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 13:51:45 -0400

> > I think that people who want regime change should be tackling this
> > as a political problem. 
> 
> This is a common ploy. Instead of solving a smaller problem that
> effects us, we should solve the entire world's problems first

Or - as the RF advocates seem to believe - it's better to demand that
someone else address a perceived problem in the way that they specify
(whether out of ignorance or malice is not clear), than to pay attention
to what actually works.  Of course, this doesn't actually address the
problem.  But if they get away with it then they can claim a victory in
the war (like the "victories" in the "war on drugs" which are nothing
but propaganda); and if they don't get away with it, they can at least
have the satisfiction of having someone to blame.

---

From: Daniel Phillips <[email-masked]>
Date: Thu, 17 Apr 2003 20:12:40 +0200

On Thu 17 Apr 03 19:51, Keith Moore wrote:
> (whether out of ignorance or malice is not clear),

Excuse me, but that is a logical fallacy called "bifurcation": you suggest 
that the only two possible motivations for criticism are ignorance or malice, 
when in fact some other motivation may be possible.

> ...than to pay attention to what actually works.

Your position is that the current IETF policy works, mine is that it doesn't, 
because it allows internet standards to be patented, with the blessing of the 
IETF.  Hence, it needs to be re-examined, regardless of which of us is right.

Regards,

Daniel

---

From: Daniel Phillips <[email-masked]>
Date: Thu, 17 Apr 2003 20:25:16 +0200

On Thu 17 Apr 03 17:56, Brian E Carpenter wrote:
> Daniel Phillips wrote:
> On Thu 17 Apr 03 17:56, Brian E Carpenter apparently wrote:
> > Daniel Phillips apparently wrote:
> > Is somebody advocating a change in an economic or legal regime?  Not me. 
> > I thought the discussion was about whether IETF should reexamine its
> > policy of allowing RAND-encumbrance in its standards.
>
> the WG to do that.

As an observer, I have a problem with that, because I saw consensus declared 
where none was achieved.

> ...but I do know that
> that some people object to.

It's hard to tell what you're driving at, but this certainly does not apply 
to me.  Internet standards are the issue, not software products.

Regards,

Daniel

---

From: [email-masked] (Bruce Perens)
Date: Thu, 17 Apr 2003 11:36:13 -0700 (PDT)

From: Keith Moore <[email-masked]>
> to what actually works.

Keith,

You don't have a monopoly on knowledge of what works.

We are able to determine from a legal perspective what will not work for
Open-Source-licensed software.

We have the advice of multiple counsel. That is our research. We don't
need to wait until we're taken to court, and doing so would be
self-destructive.

For us, it's a simple question. Will we be denied a legal right to implement
IETF standards interoperably? So far, the answer is "yes".

	Thanks

	Bruce

---

From: Scott W Brim <[email-masked]>
Date: Thu, 17 Apr 2003 14:44:50 -0400

On Thu, Apr 17, 2003 11:36:13AM -0700, Bruce Perens allegedly wrote:
> For us, it's a simple question. Will we be denied a legal right to
> implement IETF standards interoperably? So far, the answer is "yes".

Not at all.  If a license is actually required, comply with the terms of
the license and you can implement the standard.  That is your legal
right.
_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: Daniel Phillips <[email-masked]>
Date: Thu, 17 Apr 2003 20:58:03 +0200

> the license and you can implement the standard.  That is your legal

You left out the "and pay the toll, if you can" part.

Regards,

Daniel

---

From: [email-masked] (Bruce Perens)
Date: Thu, 17 Apr 2003 12:25:53 -0700 (PDT)

From: Scott W Brim <[email-masked]>
> the license and you can implement the standard.  That is your legal

Oh come on. You know full well that the terms of royalty-bearing licenses
are not compliant with the open source development paradigm. Open Source
software is denied a right to implement IETF standards that have
royalty-bearing licenses on their essential claims.

	Bruce

---

From: Scott W Brim <[email-masked]>
Date: Thu, 17 Apr 2003 15:29:51 -0400

> royalty-bearing licenses on their essential claims.

But that's not denying you your legal right.  Refer to your original
rhetoric.
_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 15:36:44 -0400

> > Or - as the RF advocates seem to believe - it's better to demand
> > that someone else address a perceived problem in the way that they
> > specify(whether out of ignorance or malice is not clear),
> 
> Excuse me, but that is a logical fallacy called "bifurcation": you
> suggest that the only two possible motivations for criticism are
> ignorance or malice, when in fact some other motivation may be
> possible.

ignorance is not a motiviation.  malice is.  the effects are similar.
 
> Your position is that the current IETF policy works, mine is that it
> doesn't, because it allows internet standards to be patented, with the
> blessing of the IETF.  Hence, it needs to be re-examined, regardless
> of which of us is right.

this is a logical fallacy called "non sequitur".

Keith

---

From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 15:37:37 -0400

> implement IETF standards interoperably? So far, the answer is "yes".

there are numerous counterexamples.  your lies have no place here.

Keith

---

From: Daniel Phillips <[email-masked]>
Date: Thu, 17 Apr 2003 21:43:46 +0200

> this is a logical fallacy called "non sequitur".

Is it?  The proposition is: we do not agree that the IETF patent policy 
works, therefore it needs to be re-examined.  This is a non-sequitur only if 
my opinion does not matter.

Regards,

Daniel

---

From: [email-masked] (Bruce Perens)
Date: Thu, 17 Apr 2003 12:41:47 -0700 (PDT)

> there are numerous counterexamples.  your lies have no place here.

Thanks a whole lot.

I can show, for example, that there is no legal right to distribute "ical"
as an Open Source program, because of IBM's patent and the RAND terms in
their disclosure. I can show that such distribution would be infringing.
I could have counsel swear to the fact.

	Thanks

	Bruce

---

From: [email-masked] (Bruce Perens)
Date: Thu, 17 Apr 2003 12:50:29 -0700 (PDT)

> But that's not denying you your legal right.  Refer to your original

OK, let me state it this way.

We're not granted the right to implement the CALSCH group
of IETF specifications, as one example, under Open Source
licensing. Distribution under Open Source terms would be in
conflict with the terms in IBM's patent disclosure related
to CALSCH. It would be infringement and would make us liable
for damages under civil law.

	Thanks

	Bruce

---

From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 15:46:56 -0400

> I can show, for example, that there is no legal right to distribute
> "ical" as an Open Source program, because of IBM's patent and the RAND
> terms in their disclosure. I can show that such distribution would be
> infringing. I could have counsel swear to the fact.

so - IF it is necessary to infringe the patent in order to implement
an IETF protocol (not clear, because ical predated iCalendar) - then
when IETF tries to advance those standards in grade, object to the
advancement and claim that the patent precludes your ability to
implement it.  you'll probably get lots of support for your objection.

---

From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 15:49:13 -0400

> Is it?  The proposition is: we do not agree that the IETF patent
> policy works, therefore it needs to be re-examined.  This is a
> non-sequitur only if my opinion does not matter.

there's no requirement in IETF process that every time someone has an
opinion on something that it has to be re-considered.

Keith

---

From: Scott W Brim <[email-masked]>
Date: Thu, 17 Apr 2003 15:52:33 -0400

> for damages under civil law.

Agreed.

---

From: [email-masked] (Bruce Perens)
Date: Thu, 17 Apr 2003 12:54:53 -0700 (PDT)

> then when IETF tries to advance those standards in grade, object to the

Yes, I could probably mobilize a consensus block on any proposed IETF
standard containing a RAND patent on a fundamental claim. This seems a
poor substitute for policy. It's not good for the working group, because
it would come late in their process.

	Thanks

	Bruce

---

From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 16:19:30 -0400

> > then when IETF tries to advance those standards in grade, object to
> > the advancement and claim that the patent precludes your ability to
> standard containing a RAND patent on a fundamental claim.

a single message to the IETF list would probably suffice to generate
sufficient support.

> This seems a poor substitute for policy. 

that's because you haven't had to deal with DoS attacks that use
such policies as a way to delay or prevent adoption of a standard.

> It's not good for the working group, because it would come late in
> their process.

given the nature of the patent system, it's within epsilon of the best
we can do.

Keith

---

From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 16:27:04 -0400

> for damages under civil law.

this may seem unnecessarily picky, but - you're free to try to license
IBM's patent under terms that are favorable to open source developers. 
the existence of one license with unfavorable terms does not preclude
other licenses.  unless you've made reasonable efforts to do this and
failed, I don't think you have a valid gripe with IETF processes.

Keith

---

From: [email-masked] (Bruce Perens)
Date: Thu, 17 Apr 2003 13:42:41 -0700 (PDT)

> such policies as a way to delay or prevent adoption of a standard.

Have you? Do such things really exist?

	Thanks

	Bruce

---

From: [email-masked] (Bruce Perens)
Date: Thu, 17 Apr 2003 13:50:16 -0700 (PDT)

> failed, I don't think you have a valid gripe with IETF processes.

Well, in this case I do plan to ask IBM and a second patent holder for new
declarations. I think Sun's is already acceptable. But this is a process that
should be carried out before a standard is promoted, and failure to get
the proper declaration on an essential claim would be sufficient reason
for blocking of consensus on the standard.

	Thanks

	Bruce

---

From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 17:00:26 -0400

> Have you? Do such things really exist?

yup.  happens frequently when a patent holder thinks it can gain a
market advantage by delaying a standard.  all the patent holder has to
do is pretend to be negotiating terms of RAND (or RF) licensing -
meanwhile blaming the delays on the laywers.  

Keith

---

From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 17:04:43 -0400

> Well, in this case I do plan to ask IBM and a second patent holder for
> new declarations. I think Sun's is already acceptable. But this is a
> process that should be carried out before a standard is promoted, and
> failure to get the proper declaration on an essential claim would be
> sufficient reason for blocking of consensus on the standard.

again, if there's a patent that is widely believed to be valid and
applicable, and the patent holder won't produce an acceptable license,
the document is highly unlikely to get consensus if the issue has
sufficient visibility.  

the real problems are with submarine patents.

Keith

---

From: Daniel Phillips <[email-masked]>
Date: Thu, 17 Apr 2003 23:25:14 +0200

> given the nature of the patent system, it's within epsilon of the best

That's a rather sweeping statement, can you support it?

Regards,

Daniel

---

From: [email-masked] (Bruce Perens)
Date: Thu, 17 Apr 2003 14:21:43 -0700 (PDT)

> meanwhile blaming the delays on the laywers.  

And how does a lack of an RF policy help with this problem? It sounds as
if your proposal is to go ahead while rights are ambiguous, and either
sort the problem out later or let the implementor sort it out. I don't
see how this improves matters.

	Thanks

	Bruce

---

From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 17:32:41 -0400

> > market advantage by delaying a standard.  all the patent holder has
> > to do is pretend to be negotiating terms of RAND (or RF) licensing -
> I wish to propose that in such a case, the working group would divert
> the technique in question onto an "unofficial, optional" track and
> pursue or seek an alternative.  That way, no time is lost and the bad
> actor only hurts themselves.

no, the bad actor can use this as a way to prevent adoption of the
standard, which might be to the bad actor's benefit.

don't assume that the only way a patent holder can manipulate the
standards process to its advantage is to get a standard passed that uses
that patent.  often preventing a standard from being approved is more
useful.

---

From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 17:29:48 -0400

> And how does a lack of an RF policy help with this problem? It sounds
> as if your proposal is to go ahead while rights are ambiguous, and
> either sort the problem out later or let the implementor sort it out.
> I don't see how this improves matters.

it lets participants decide whether to contribute to a consensus based
on their assessment of the validity of the patent, the applicability of
the patent, and the license (if any) offered by the vendor.  thus it is 
up to the participants to decide how long they want to wait before
approving the standard, exploring other possibilities, etc.

on the other hand, requiring either RF or RAND would provide the patent
holder (even a holder of a patent with questionable applicability or
validity) a way to use IETF's process against it to force a delay for
as long as the patent holder wants. IIRC this was the case when IETF
required RAND, and the policy was changed to not strictly require RAND
for this very reason. it's hard to imagine why an RF requirement would
be less vulernable to DoS attacks than a RAND requirement.

Keith

---

From: Daniel Phillips <[email-masked]>
Date: Thu, 17 Apr 2003 23:28:23 +0200

> meanwhile blaming the delays on the laywers.

I wish to propose that in such a case, the working group would divert the 
technique in question onto an "unofficial, optional" track and pursue or seek 
an alternative.  That way, no time is lost and the bad actor only hurts 
themselves.

Regards,

Daniel

---

From: Scott W Brim <[email-masked]>
Date: Thu, 17 Apr 2003 17:37:37 -0400

> an alternative.  That way, no time is lost and the bad actor only hurts 

Yup, that track is called Informational.
_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: Scott W Brim <[email-masked]>
Date: Thu, 17 Apr 2003 17:37:10 -0400

> be less vulernable to DoS attacks than a RAND requirement.

See RFC 1915.

---

From: [email-masked] (Bruce Perens)
Date: Thu, 17 Apr 2003 14:40:43 -0700 (PDT)

> the real problems are with submarine patents.

I agree that submarine patents are a real and special problem. But I'd
like you to admit that patents that are not submarines also present
significant problems.

Standards organization policy is a good tool for dealing with everything
but the submarines. It also gives you _one_ good tool for dealing with
submarines - you can let them know how you'll handle an extortion attempt.
If your stated policy is to withdraw the recommendation and produce a work
around for any submarine which is presented to you, the extortioner will
know that there's no profit to be had.

	Thanks

	Bruce

---

From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 17:49:42 -0400

> like you to admit that patents that are not submarines also present

Bruce, nobody doubts that patents present significant problems.
The disagreement is about how best to deal with those problems.
We have experience in this organization that requiring a particular
kind of license led to DoS attacks.  We changed the policy to make
us less vulnerable to those kinds of attacks while still trying to
encourage standards to avoid encumbered technology.  Is the resulting
policy foolproof or immune to attack?  No.  But we do the best we can. 
And we'll continue to tweak our policies in light of experience (NOT
however in light of vague threats that the sky is going to fall.)
Furthermore we can't let our policy be dictated by a single threat.  A
policy that tries to safeguard against one kind of threat will make us
more vulnerable to another kind of threat.

Keith

---

From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 17:53:09 -0400

> > standards process to its advantage is to get a standard passed that
> > uses that patent.  often preventing a standard from being approved
> > is more useful.
> 
> That may prove hard to do if the stated policy is to treat IP licenses
> in negotiation as damage, and route around them.

things are rarely that cut and dried.  maybe there's a patent but not a
license.  maybe there's a licence that is almost reasonable, but trying
to get that last little bit fixed provides enough delay to accomplish
the patent holder's aims.  IPR lawyers can be very devious negotiators,
and they won't hesistate to use our processes against us any more than
they would hesitate to use every trick available in a court.

Keith

---

From: [email-masked] (Bruce Perens)
Date: Thu, 17 Apr 2003 14:58:30 -0700 (PDT)

> the patent, and the license (if any) offered by the vendor.

But since IETF doesn't have a patent analysis group process like W3C,
what good information do the participants have? Those on official
corporate projects may be able to make use of searches, legal findings,
and even declaratory judgements, and then their individual corporate
agendas will come into play. They can't give legal advice to the rest
of the group, and will ofen keep their findings secret due to fear of
liability. Those on the WG who are authenticaly individuals won't have
good information.

Thus, it sounds to me as if the absence of policy allows the patent
holder to provide unacceptable licensing, or to waffle for just as long
as they would have in the presence of good policy. The effect of the patent
upon the standard remains forever ambiguous because the working group members
don't have good information. The working group members will tend to complete
the standard even when such action would not be appropriate, given
better information.

All of this is probably acceptable to the working group members until
IETF has one Rambus case of its own. And we're just waiting for that
truck to hit us.

	Thanks

	Bruce

---

From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 18:04:13 -0400

> what good information do the participants have? 

participants have whatever information they wish to avail themselves of,
from whatever sources they choose to employ, just as with every other
aspect of a document that they are evaluating. 

Keith

---

From: Daniel Phillips <[email-masked]>
Date: Fri, 18 Apr 2003 00:13:26 +0200

> IETF has one Rambus case of its own. And we're just waiting for that

Wasn't it a train? :-)

Regards,

Daniel

---

From: Daniel Phillips <[email-masked]>
Date: Fri, 18 Apr 2003 00:10:42 +0200

On Thu 17 Apr 03 23:53, Keith Moore wrote:
> the patent holder's aims.

That is why the stated policy should be *always* to put the technique into 
the "unofficial, optional" category while such questions exist.

> IPR lawyers can be very devious negotiators,

Putting my "devious" hat on, I'm having a hard time thinking of a way to 
abuse this one.  As a devious lawyer, I would more likely have to face up to 
the liklihood that my manuevering will merely inspire the discovery of an 
even better technique than the one I am trying to co-opt, leaving my client 
in a worse position than when they hired me.

Regards,

Daniel

---

From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 18:14:39 -0400

> > things are rarely that cut and dried.  maybe there's a patent but
> > not a license.  maybe there's a licence that is almost reasonable,
> > but trying to get that last little bit fixed provides enough delay
> > to accomplish the patent holder's aims.
> 
> That is why the stated policy should be *always* to put the technique
> into the "unofficial, optional" category while such questions exist.

nope, that makes for instant denial-of-service, even from patents of
dubious validity or applicability.

> > and they won't hesistate to use our processes against us any more
> > than they would hesitate to use every trick available in a court.
> 
> Putting my "devious" hat on, I'm having a hard time thinking of a way
> to abuse this one.  

may I suggest that you not consider a career as an IPR lawyer then?

Keith

---

From: Daniel Phillips <[email-masked]>
Date: Fri, 18 Apr 2003 00:17:20 +0200

> failed, I don't think you have a valid gripe with IETF processes.

On the contrary, it seems to draw attention to the gripe that the situation 
could have been prevented from arising in the first place, through a slight 
policy realignment.

Regards,

Daniel

---

From: Daniel Phillips <[email-masked]>
Date: Fri, 18 Apr 2003 00:24:18 +0200

On Thu 17 Apr 03 23:37, Scott W Brim wrote:
> > technique in question onto an "unofficial, optional" track and pursue or
> > seek an alternative.  That way, no time is lost and the bad actor only
> > hurts themselves.
>

Thanks, I'll call it that.

Regards,

Daniel

---

From: Daniel Phillips <[email-masked]>
Date: Fri, 18 Apr 2003 00:26:25 +0200

> dubious validity or applicability.

How?  Are you making the assumption that no alternative exists?  How could a 
working group assume that, without considering the question?

Regards,

Daniel

---

From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 18:29:07 -0400

> > > That is why the stated policy should be *always* to put the
> > > technique into the "unofficial, optional" category while such
> > > questions exist.
> >
> How?  Are you making the assumption that no alternative exists?  How
> could a working group assume that, without considering the question?

yes, I'm assuming that if there are reasonable alternatives that don't
appear to be encumbered a WG will try to use them rather than deal with
the ambiguities associated with patents.  the only reason to try to deal
with patents is if the patented technologies appear to be technically
superior, or the only good way to solve the problem.

Keith

---

From: Daniel Phillips <[email-masked]>
Date: Thu, 17 Apr 2003 23:43:12 +0200

> standard, which might be to the bad actor's benefit.

No, because the working group will have found an alternative, leaving the bad 
actor's pet technique languishing in the category of "unofficial, optional".

> that patent.  often preventing a standard from being approved is more

That may prove hard to do if the stated policy is to treat IP licenses in 
negotiation as damage, and route around them.

Regards,

Daniel

---

From: [email-masked] (Bruce Perens)
Date: Thu, 17 Apr 2003 15:34:51 -0700 (PDT)

> aspect of a document that they are evaluating. 

Ugh. That's likely to be no information at all. We're able to generate
our own answers to engineering problems. Period. Lawyers don't just stand
on corners giving out free advice that engineers will understand.

We really need a PAG to do standards well in the context of patents. A PAG
doesn't fit the current IETF process, but this isn't a problem with a PAG.

	Thanks

	Bruce

---

From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 18:43:29 -0400

On Thu, 17 Apr 2003 15:34:51 -0700 (PDT)
[email-masked] (Bruce Perens) wrote:

> > participants have whatever information they wish to avail themselves
> > of, from whatever sources they choose to employ, just as with every
> > other aspect of a document that they are evaluating. 
> 
> our own answers to engineering problems. Period. Lawyers don't just
> stand on corners giving out free advice that engineers will
> understand.

neither do they accept liability for when a court rules contrary to
what they advise.  and neither can IETF.  nor is IETF able or willing to
accept the expense of advising WG participants whenever there is a
question about a patent.

> We really need a PAG to do standards well in the context of patents. A
> PAG doesn't fit the current IETF process, but this isn't a problem
> with a PAG.

some problems with a PAG are liability and cost and inability of the
IETF to assume risks on behalf of its participants.  bottom line: IETF
can't change the fact that patent law imposes risks on implementors.

Keith

---

From: [email-masked] (Bruce Perens)
Date: Thu, 17 Apr 2003 15:51:28 -0700 (PDT)

> From [email-masked]  Thu Apr 17 15:43:30 2003
> IETF to assume risks on behalf of its participants. 

Any time an attorney gives advice there are similar problems. You
mitigate them as much as possible by drawing up good membership
agreements (something else we don't have here), and handle the
rest by incorporating to partition risk.

I created a proper 501c(3) non-profit corporation for a free sofware
project. It provides the developers with some degree of protection that
they would not have otherwise.

	Thanks

	Bruce

---

From: Daniel Phillips <[email-masked]>
Date: Fri, 18 Apr 2003 00:56:06 +0200

> superior, or the only good way to solve the problem.

Ah, ok.  Well, if no alternative exists and someone is successfully blocking 
a standard, then that is too bad, the standard is blocked.  That unlikely, 
and probably temporary situation is preferable to allowing the standard to 
proceed, thereby granting the blocker monopoly control over it, or more 
particularly, excluding free implementation of the standard.

It should be no concern of the IETF's whether somebody could (somewhat 
fancifully) be able to take advantage of such a delay to create a profit for 
themselves.  It is not the job of the IETF to administrate profit-making, but 
to promote standards that can be freely implemented.  I thought.

Regards,

Daniel

---

From: jeremy hunsinger <[email-masked]>
Date: Thu, 17 Apr 2003 19:52:50 -0400

has anyone delineated the consensus here and the standard for 
consensus....
my rough count is
31 for
8 against
and this hardly seems like consensus to me with over 25% against, 
especially with the oppositional characteristics of the current 
discussion.

if you have an alternate count, I'd love to see it.  I'd be happy to 
provide mine to anyone who asks.

jeremy hunsinger
[email-masked]
on the ibook
www.cddc.vt.edu
www.cddc.vt.edu/jeremy
www.cddc.vt.edu/jeremy/blog

()  ascii ribbon campaign - against html mail
/\                        - against microsoft attachments

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Tue, 22 Apr 2003 10:10:12 +0200

> see how this improves matters.

See section 4.6 of draft-ietf-ipr-wg-guidelines-02 for one specific 
example. The section does not comment on the motivation of the IPR holders; 
my interpretation of the claim at the time (unless I confuse them - there 
were several) was that the publication of the claim at that time was a 
deliberate attempt to derail the standards process.

If the IETF policy had been "stop dead on a claim of IPR without an RF 
offer", the IDN standards would not have been published.

For those who can't bother to read the documents of the WG they claim to 
participate in, I've reproduced the section below.

                     Harald

--------------------------------------------------------------------
4.6 IDN (Internationalized Domain Name)

   The IDN working group dealt with a number of IPR claims. Several were
   made which did not overlap with the technology -- the IPR claimants
   said the patents were being announced just in case the working group
   decided to go that way. In one case, even though a patent was
   announced as purely defensive, many working group participants
   investigated the claims themselves. They concluded that it did not
   overlap.

   In one case, an IPR claimer asserted that the working group's
   documents, and in fact the IETF as a whole, were infringing on its
   rights.  Individual working group participants consulted with their
   legal advisers, concluded that the claims would not overlap the
   working group's developing technology, and decided to ignore the
   claims.  This was reflected in the direction the group as a whole
   decided to take.

   In another case, patent claims were asserted that appeared to be
   derived from WG discussion and impact, rather than vice versa (or
   independent discovery).  The claimants were known to be following the
   WG's work when the ideas were proposed, and their patent filing was
   considerably subsequent to that time.

   In 2000 the IDN working group discovered a patent that some
   participants thought might apply to one of their main drafts. If it
   did, it could affect their work profoundly -- to the extent that some
   suggested that if they could not work out reasonable licensing terms
   with the IPR claimant they might just disband.  As a group and
   individually, participants corresponded with IPR claimant in order to
   get an explicit statement of licensing terms, preferably
   royalty-free.  By doing so they gained a better understanding of just
   which WG activities were seen as infringing on the patent, and at
   least some understanding of the IPR claimant's intentions and
   philosophy.  Since the patent holder seemed to have an interest in
   using the patent for profit, the group discussed the issues on its
   mailing list. They overtly talked about how they could change their
   proposed technology to avoid having to contest the patent, and the
   extent to which the patent might be countered by claims of prior art.
   Meanwhile, individually they were talking to their legal advisors.
   Gradually, a collective opinion formed that the working group
   documents did not infringe on the patent.  Since then, the patent has
   been ignored.  However, they are keeping a watchful eye out for
   continuation patents which might have already been submitted.

   Lessons:

   o  It's sometimes beneficial to push IPR claimants to find out what
      they think their claims cover and what their licensing terms are.

   o  Possibilities of prior art should be considered.

   o  It's all right, and sometimes beneficial, to discuss IPR claims
      and gather information about possible prior art on the group list.
      The results of such discussion can be considered when deciding
      whether to develop a technology (but remember that neither the
      IETF nor any working group takes a stand on such claims as a body,
      and the group is not the best place to get legal advice).

---

From: Daniel Phillips <[email-masked]>
Date: Tue, 22 Apr 2003 16:57:00 +0200

> deliberate attempt to derail the standards process.

These anecdotes nicely illustrate the benefits of allowing a working group to 
proceed with its work, regardless of the nature of IP claims and licence 
offers extant.  They don't shed light on Bruce's original question: how does 
a lack of an RF policy help with [the intentional delay] problem?

> offer", the IDN standards would not have been published.

As far as I can see, Bruce did not propose anything that could be understood 
as a policy of stopping dead a claim of IPR without an RF offer.

It is my position that an intelligently devised RF policy would help prevent 
DoS attacks on standards from succeeding.  Your anecdotal evidence would seem 
to support my view, not Keith Moore's prediction that an RF policy would 
cause an increase in successful DoS attacks on standards.

Regards,

Daniel

---

From: Daniel Phillips <[email-masked]>
Date: Tue, 22 Apr 2003 18:06:50 +0200

On Thu 17 Apr 03 23:29, Keith Moore wrote:
> as long as the patent holder wants.

The gaping hole in this logic is that a RF policy would not:

  - prevent participants from deciding whether to contribute to a consensus 
    based on their assessment of the validity of the patent, the 
    applicability of the patent, and the license (if any) offered by the 
    vendor.

  - exploring other possibilities

  - etc.

It 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.

Regards,

Daniel

---

From: "Bob Wyman" <[email-masked]>
Date: Tue, 22 Apr 2003 17:10:47 -0400

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. 
	The IETF IPR policy must allow enough flexibility to permit
standards development whenever it is considered useful. It should be
recognized that a standard can have utility even if there exist some who
refuse to implement it. The fact that one part of the development
community refuses to pay for IPR under any circumstances should not be
used as a DOS attack on the IETF's ability to develop useful standards
that will serve the rest of the community.
	The IETF should avoid encumbered methods whenever possible and
only when possible. 

		bob wyman

---

From: Daniel Phillips <[email-masked]>
Date: Tue, 22 Apr 2003 23:41:58 +0200

> 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.

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.

> 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.

> It should be

Why do you say "refuse" when you really mean "cannot"?  And why do you say 
"one part" as if it were an unimportant part?

> that will serve the rest of the community.

Apparently, your argument boils down to: if those trouble-makers would just 
shut up and pay, then we could all get along.

> 	The IETF should avoid encumbered methods whenever possible and

You did not support that position very well.

Regards,

Daniel

---

From: "Vach Kompella" <[email-masked]>
Date: Tue, 22 Apr 2003 14:58:06 -0700

Groan!  Just as I had whittled my unread messages in IPR to 0 and could
concentrate on the evils of site-local.

-Vach

> -----Original Message-----
> From: [email-masked] [mailto:[email-masked]]On Behalf Of
> Daniel Phillips
> Sent: Tuesday, April 22, 2003 2:42 PM
> To: [email-masked]; [email-masked]
> Subject: Re: RF policy helps achieve unencumbered standards?
>
>

---

From: Ami Ganguli <[email-masked]>
Date: 23 Apr 2003 10:10:52 +0300

On Wed, 2003-04-23 at 00:10, Bob Wyman wrote:
> An

This seems to be the crux of the argument - everything else I've read in
this discussion is just noise.

You contend this is wrong.  There are many who consider it right and
essential.

My personal view that on patent-encumbered standards is that:

1. They're not needed.  If the technology is really essential creating a
certain functionality, then the company that controls the technology can
certainly mandate how it's implemented.  Standard by royal decree.

2. The existence of such "standards" goes against principle that has
built the Internet and made it a success.  There were several commercial
networks that at one point or another looked like they would be much
more widespread than the Internet.  The Internet took over because it
was open.  Anybody could play.

Giving legitimacy to standards that cannot be universally deployed harms
whole categories of users:
- individuals who want to use Linux/*BSD on their desktops, 
- companies that want to build on Open Source technology to create new
and innovative products,
- schools and other institutions that want to interact with the world,
but have very tight budget constraints

If a new working group is chartered, then this is the issue that must be
examined.  

... Ami

---

From: "Bob Wyman" <[email-masked]>
Date: Wed, 23 Apr 2003 11:15:10 -0400

Daniel Phillips wrote:
> I thought it was already established that patented 
> IETF standards are not useful, because they cannot 
	This has been claimed, but not established.
	In many cases, the elements of a standard that are encumbered
are non-essential to the utility of the standard as a whole. In such
cases, an implementer has the option of simply avoiding implementation
of the encumbered element. A standard which is generally implementable
in-part, is often more useful than no standard at all. (Note: I realize
that it is not current IETF policy to encourage "profiles" or partial
implementations...)
	For example: As I've pointed out a number of times, Microsoft
seems to have a pretty solid patent on the "is-composing" feature of
Instant Messaging systems. This is the feature that warns you that
someone is composing a message to you before it is sent. This feature is
not essential to the implementation of an IM system, yet is useful and
has become something that many users consider very desirable. However,
an absolute RF-only policy would prevent either SIMPLE or XMPP from even
considering accommodating this feature in their work. As a result, not
even those who were willing to pay license fees to practice the
"in-composing" method, would be able to do so within the context of
SIMPLE or XMPP without introducing non-standardized extensions that
might interfere with the operation of implementations that did not
incorporate the encumbered methods. 
	It has been suggested that the owners of IPR should be
responsible for declaring (as by edict) whatever standards are to apply
to the use of their methods. However, in this case, the is-composing
feature only makes sense within the context of a broader protocol. To
insist that the patent holder is solely responsible for declaring the
standards of use means that the patent holder is essentially established
as an unofficial and uncoordinated extension of the IETF working group
that creates that base protocol. This creates tremendous numbers of
opportunities for conflict and confusion. I believe that in cases like
that presented by is-composing, it makes much more sense for the IETF WG
to define how is-composing should fit within the SIMPLE and/or XMPP
standards and do so in the same context and with the rigorous review
that all other elements of SIMPLE and XMPP are defined. The WG should be
able to dictate how is-composing protocol elements must be implemented
-- if they are implemented. 
	If WG's can't deal with encumbered non-essential elements of
their work, then their ability to produce coherent, stable standards is
reduced and the utility of the non-encumbered elements of the standard
is threatened.

		bob wyman

---

From: Scott W Brim <[email-masked]>
Date: Wed, 23 Apr 2003 11:25:14 -0400

> that it is not current IETF policy to encourage "profiles" or partial

This is usually done through carefully crafted SHOULD and MAY
statements.
_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg