Subject: RE: RF policy helps achieve unencumbered standards?

From: [email-masked]
Date: Thu, 17 Apr 2003 17:45:43 -0400

> > 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.
> 
> 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.

That's significantly preferable to the "implicit mandatory licensing by
participants" approach.  In light of previous discussion, there should
be an opportunity for the application of good engineering judgment to
"essential claim" (i.e., one shouldn't accept that a claim is essential
just because the claimant says it is - see Keith's comments on DoS attacks).
I suspect that most WGs would block consensus in the absence of a good
declaration on a patent the WG feels is essential as the IETF processes
currently stand.

It would also be highly beneficial to reduce the creativity of lawyers
in the "proper declaration" category - I don't know if we can get to
the equivalent of the "pick one of the following 3 chunks of text"
process for copyrights on Internet-Drafts, but it wouldn't hurt to try,
and even a requirement along the lines of "check one of the following
6 boxes" to indicate category (e.g., terms/conditions) of an IPR notice
would be an improvement over the current situation.

Thanks,
--David
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David L. Black, Senior Technologist
EMC Corporation, 176 South St., Hopkinton, MA  01748
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[email-masked]        Mobile: +1 (978) 394-7754
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From: [email-masked] (Bruce Perens)
Date: Thu, 17 Apr 2003 15:27:06 -0700 (PDT)

The problem I have with this is the lack of resources dedicated to
evaluating the problem. Engineers aren't necessarily able to determine
the applicability of a patent on their own. There aren't any resources
dedicated to do even the thinnest of searches before a standard is
promoted. So, I think that IETF working groups will always act on bad
information using the present policy.

	Thanks

	Bruce

From: [email-masked]

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From: Keith Moore <[email-masked]>
Date: Thu, 17 Apr 2003 18:44:22 -0400

On Thu, 17 Apr 2003 15:27:06 -0700 (PDT)
[email-masked] (Bruce Perens) wrote:

> the applicability of a patent on their own. 

nor, for that matter, are lawyers.

Keith

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From: "Lawrence E. Rosen" <[email-masked]>
Date: Thu, 17 Apr 2003 16:30:08 -0700

David Black wrote:
> That's significantly preferable to the "implicit mandatory 
> licensing by participants" approach.  In light of previous 
> discussion, there should be an opportunity for the 
> application of good engineering judgment to "essential claim" 
> (i.e., one shouldn't accept that a claim is essential just 
> because the claimant says it is - see Keith's comments on DoS 
> attacks). I suspect that most WGs would block consensus in 
> the absence of a good declaration on a patent the WG feels is 
> essential as the IETF processes currently stand.

The reason for the "implicit mandatory licensing by participants" in W3C
was because the members refused to exercise their "good engineering
judgment to [find an] 'essential claim.'"  

They have good reasons to refuse to do so.  Companies don't want to
spend time searching their patent portfolios.  They don't want to
disclose their essential claims prematurely or without having done an
essentiality analysis.  They don't have the time or the energy or the
money to devote to such an exercise when there are large numbers of
proposed standards, huge numbers of patents, and no easy way to
determine early on what the value of an essential claim would be even if
they found it in their portfolios.

Neither do designers of standards, and neither do implementers of
software complying with the standards, have the time, energy or money to
analyze every patent that comes along.  The DoS threat that Keith speaks
about is a real one.  

Hence, implicit mandatory licensing.  In the past, companies would say
"whatever we have you can license on RAND terms."  Take a look at the
letters received by IETF.  They all -- or almost all -- say that.  They
seldom identify specific patents, they even less frequently identify
specific claims in those patents, and they don't always even identify
the standard to which their blanket "implicit mandatory licensing"
applies.

Given that there is already, to all intents and purposes, avoidance by
all of the burden of looking for patents, and a practice within almost
all standards organizations of this form of "implicit mandatory
licensing," should that implicit mandatory license be RAND or RF?

For patents asserted by third parties, of course, there is still the
burden to exercise "good engineering judgment" about whether the patent
even applies.  We all share that burden, whether we're open source or
proprietary.

/Larry Rosen