Subject: I-D ACTION:draft-savola-ipr-lastcall-00.txt (fwd)

From: Pekka Savola <[email-masked]>
Date: Fri, 25 Apr 2003 16:24:05 +0300 (EEST)

Hello all,

At the beginning of this month, I circulated an idea to add IPR 
information to Last Calls.

This fleshes out the gritty bits and adds some more.  Comments are
welcome, naturally.

-- 
Pekka Savola                 "You each name yourselves king, yet the
Netcore Oy                    kingdom bleeds."
Systems. Networks. Security. -- George R.R. Martin: A Clash of Kings
---------- Forwarded message ----------
Date: Fri, 25 Apr 2003 07:42:50 -0400
From: [email-masked]
To: IETF-Announce:  ;
Cc: [email-masked]
Subject: I-D ACTION:draft-savola-ipr-lastcall-00.txt

A New Internet-Draft is available from the on-line Internet-Drafts directories.

	Title		: Mentioning IPR Considerations in Last Calls
	Author(s)	: P. Savola
	Filename	: draft-savola-ipr-lastcall-00.txt
	Pages		: 6
	Date		: 2003-4-24
	
This memo describes an additional policy with last calls regarding
Intellectual Property Rights (IPR) claims.  The existence and the
pointer to the IPR claims or an indication of non-existence of
knowledge of such claims must be mentioned in all IETF last calls and
should be mentioned in working group last calls.  Additionally, all
documents for which a last call prior to the publication was not
required and IPR claims are known, must now be either last-called or
rejected.
This memo updates RFC 2026 and RFC 2418.

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---

From: "Bob Wyman" <[email-masked]>
Date: Fri, 25 Apr 2003 13:18:04 -0400

In Section 2, paragraph 5 it is written:
> If IPR claims are known but have not been recorded in the 
> IETF IPR repository yet, documents must not be last-called 
> prior to the claims appearing in the repository.
	This sounds like it has the potential for opening up DOS
attacks. Someone could declare that claims will be filed but then
indefinitely delay posting those claims to the repository. Thus, they
can stop the process fairly easily.
	I suggest that a procedure be defined that would allow a WG
chair or AD, after some "reasonable" amount of time, to replace the
required reference to the repository with a statement that claims have
been made but not registered. The determination of what is a
"reasonable" time to wait should probably be left to the WG chair and AD
although some minimum delay (perhaps 30 days) might be considered. Note:
We should also be aware that an obstructionist IPR holder who claims
multiple infringements can delay the process significantly by simply
making a first claim, waiting as long as possible to register it, then
making a subsequent claim and once again waiting as long as possible to
register it. In some cases, the Last Call could be indefinitely delayed
by a single IPR holder. Given that there is nothing in your draft that
speaks to the "quality" of claims, this blockage of an ID could be the
result of completely irrelevant or specious claims.
	There will be some debate over what it means for claims to be
"known." If I send mail to a WG chair saying that I have claims to make,
but do not provide any documentation or explanation of the claims, is
this considered "knowledge" of a claim? Similarly, if a third-party
discloses that some IPR holder "could" make a claim, does this
constitute a "known" claim? What if I simply say "I vaguely remember
that company X has a patent on this method..." Does that reach the level
of "knowledge"?
	There is no discussion in the document concerning what should be
done about IPR claims that arrive during or as a result of the Last Call
process. Should they be ignored? Should the last call be restarted upon
receiving knowledge of a new claim? Or, upon registration of the claim
if that registration happens before the end of the Last Call period?
	It should be noted that if we permit an ID to move to Last Call
if "known" claims are not registered in a timely fashion and if there is
no requirement for Last Call to be restarted upon the eventual proper
registration of those claims, then there is the potential for abuse by
WG chairs and/or an AD. In these circumstances, an aggressive WG Chair
or AD might decide to immediately do a Last Call on a document upon
hearing of an unregistered claim in order to try to push the document
through the process without proper consider of the pending claim.

In "4. Process Considerations", paragraph 2:
> the "IPR claims" category -- but as the terms very from company to
 	Spelling error... "very" should be "vary"

		bob wyman

---

From: Pekka Savola <[email-masked]>
Date: Fri, 25 Apr 2003 21:40:52 +0300 (EEST)

Hi,

Thanks for comments.  Responses below.  I'll wait for more comments and 
revise the document shortly.

> can stop the process fairly easily.

Indeed, I had not considered the effect of third-party disclosures (with 
others, you're only able to shoot yourself in the foot).

> although some minimum delay (perhaps 30 days) might be considered. 

This seems reasonable to me.

I propose to add a factor here, in practice like (with some rewording, 
re-thinking etc.):

  If, after a significant delay and attempts to get the IPR claims 
  registered to the repository are unsuccesful, the AD or chairs, 
  respectively, are allowed to either:

    1. register a placeholder claim, giving a pointer to the disclosure,
    2. indicate the fact that claims have not been registered in the last 
       call, giving a pointer to the disclosure, or
    3. not proceed until claims have been properly registered.

The second option would avoid the hassles of placeholders and give the 
readers of the last call the possibility to judge for themselves.

> Note:
> by a single IPR holder. 

Indeed.

> Given that there is nothing in your draft that
> speaks to the "quality" of claims, 

Very true -- but this is deliberate, as the last-caller (be it a chair or 
IESG) cannot/will not judge the "quality" of claims.

> this blockage of an ID could be the

Yep.

> constitute a "known" claim? 

The intention of the word "known" was used to refer to a disclosure having
been made on any forum on any form.

As you note, the third party "disclosures" are particularly difficult in
this context -- as the (possible) IPR holder may or may not be too
enthusiastic to providing the terms and the statement -- that'd mean added
work.

A real-life example: Apple has claimed IPR on Source Specific Multicast in
http://www.ietf.org/ietf/IPR/APPLE-SSM.txt.  After looking this very
briefly in the SSM working group, it appears some claims may apply.  
However, at the same time it looks like that some other parts of the
published patent may also apply to certain other standards, some of which
are already on Standards Track.  I sent a note on the affected working 
group's mailing list on this.  Is this a case of "known" IPR?  It has 
quite a specific reference.  I'd say yes.

If anyone has any thoughts how this could be worded properly, ideas would 
be appreciated..

> What if I simply say "I vaguely remember

I'd perhaps say "no", but that is a judgment call -- by the chair(s)/AD.  
If they'd choose "yes", the second option of the 3rd party disclosure 
options above could be a useful way out. 

> if that registration happens before the end of the Last Call period?

Indeed. I'd suggest another last call.

> through the process without proper consider of the pending claim.

Yes -- but such actions can be appealed, so I'm not sure how much work 
should be spent on that case. 

>  	Spelling error... "very" should be "vary"

Thanks.

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Fri, 25 Apr 2003 12:50:16 -0700

I am mystified by all this talk about "denial of service attacks" simply
because someone says "I have a patent I won't tell you much about" or "I
think this patent application I won't disclose might apply."  Did anyone
suggest that a WG should react at all to such vague, uncertain
assertions?  Why waste your time on that?

In order for any patent assertion to be meaningful, it must be
accompanied by enough information for a reasonable and knowledgeable
member of the WG to believe there might be a problem.  It would be
appropriate for any correspondence from patent owners to be published
for all to see.  Beyond that, WGs generally are not skilled at analyzing
patent claims anyway.

On the other hand, when a participant in a WG says "my company is
working in this area and has patents that might apply," or "I am aware
of this third party patent that might apply," there is clearly enough
reason to worry.  The participant is knowledgeable in the technology and
presumptively knowledgeable about his company's (or the third party's)
IP, and the threat to the standard is tangible.  It makes sense for the
rest of the WG members to ask questions, inquire about the IP, and avoid
trampling it.  It might make sense at that time to consult with patent
attorneys who can render meaningful opinions.  In my view, it also makes
sense to demand license terms from WG participants and their companies,
or from third parties, and to reject licenses that are incompatible with
the mission of the IETF, or avoid or design around such IP altogether.

Once again, in my view, with this proposed IETF IPR policy the IPR WG is
devoting altogether too much energy to worrying about vague assertions
of IP, and entirely too little energy to determining workable license
terms once the WG reasonably concludes that IP is likely to affect the
standard.

/Larry Rosen

> -----Original Message-----
> From: [email-masked] [mailto:[email-masked]] On 
> Behalf Of Bob Wyman
> Sent: Friday, April 25, 2003 10:18 AM
> To: 'Pekka Savola'; [email-masked]
> Subject: RE: I-D ACTION:draft-savola-ipr-lastcall-00.txt (fwd)
> 
> 
> 	This sounds like it has the potential for opening up 
> DOS attacks. Someone could declare that claims will be filed 
> but then indefinitely delay posting those claims to the 
> repository. Thus, they can stop the process fairly easily.
> 	I suggest that a procedure be defined that would allow 
> a WG chair or AD, after some "reasonable" amount of time, to 
> replace the required reference to the repository with a 
> statement that claims have been made but not registered. The 
> determination of what is a "reasonable" time to wait should 
> probably be left to the WG chair and AD although some minimum 
> delay (perhaps 30 days) might be considered. Note: We should 
> also be aware that an obstructionist IPR holder who claims 
> multiple infringements can delay the process significantly by 
> simply making a first claim, waiting as long as possible to 
> register it, then making a subsequent claim and once again 
> waiting as long as possible to register it. In some cases, 
> the Last Call could be indefinitely delayed by a single IPR 
> holder. Given that there is nothing in your draft that speaks 
> to the "quality" of claims, this blockage of an ID could be 
> the result of completely irrelevant or specious claims.
> 	There will be some debate over what it means for claims 
> to be "known." If I send mail to a WG chair saying that I 
> have claims to make, but do not provide any documentation or 
> explanation of the claims, is this considered "knowledge" of 
> a claim? Similarly, if a third-party discloses that some IPR 
> holder "could" make a claim, does this constitute a "known" 
> claim? What if I simply say "I vaguely remember that company 
> X has a patent on this method..." Does that reach the level 
> of "knowledge"?
> 	There is no discussion in the document concerning what 
> should be done about IPR claims that arrive during or as a 
> result of the Last Call process. Should they be ignored? 
> Should the last call be restarted upon receiving knowledge of 
> a new claim? Or, upon registration of the claim if that 
> registration happens before the end of the Last Call period?
> 	It should be noted that if we permit an ID to move to 
> Last Call if "known" claims are not registered in a timely 
> fashion and if there is no requirement for Last Call to be 
> restarted upon the eventual proper registration of those 
> claims, then there is the potential for abuse by WG chairs 
> and/or an AD. In these circumstances, an aggressive WG Chair 
> or AD might decide to immediately do a Last Call on a 
> document upon hearing of an unregistered claim in order to 
> try to push the document through the process without proper 
> consider of the pending claim.
> 
>

---

From: D F <[email-masked]>
Date: Sat, 26 Apr 2003 23:59:13 -0400

On April 25, 2003 15:50, Lawrence E. Rosen wrote:
> I am mystified by all this talk about "denial of service attacks"
> simply because someone says "I have a patent I won't tell you
> much about" or "I think this patent application I won't disclose
> might apply."  Did anyone suggest that a WG should react at all
> to such vague, uncertain assertions?  Why waste your time on
> that?
>
> accompanied by enough information for a reasonable and
> knowledgeable member of the WG to believe there might be a
> problem.  It would be appropriate for any correspondence from
> patent owners to be published for all to see.  Beyond that, WGs
> generally are not skilled at analyzing patent claims anyway.
>
> working in this area and has patents that might apply," or "I am
> aware of this third party patent that might apply," there is
> clearly enough reason to worry.  The participant is knowledgeable
> in the technology and presumptively knowledgeable about his
> company's (or the third party's) IP, and the threat to the
> standard is tangible.  It makes sense for the rest of the WG
> members to ask questions, inquire about the IP, and avoid
> trampling it.  It might make sense at that time to consult with
> patent attorneys who can render meaningful opinions.  In my view,
> it also makes sense to demand license terms from WG participants
> and their companies, or from third parties, and to reject
> licenses that are incompatible with the mission of the IETF, or
> avoid or design around such IP altogether.
>
> Once again, in my view, with this proposed IETF IPR policy the
> IPR WG is devoting altogether too much energy to worrying about
> vague assertions of IP, and entirely too little energy to
> determining workable license terms once the WG reasonably
> concludes that IP is likely to affect the standard.
>
> /Larry Rosen

This is about the most succinct, coherent review of the difficulties
with the submissions as I've yet seen. I support, without
reservation, the thrust of Larry's remarks.

- -- 
Dave Fluri
PGP Public Key-ID 3F64B9AC

---

From: Steve Coya <[email-masked]>
Date: Mon, 28 Apr 2003 09:00:07 -0400 (Eastern Daylight Time)

>>    2. indicate the fact that claims have not been registered in the
>>       last call, giving a pointer to the disclosure, or

If implemented, I suggest that these "placeholders" be clearly marked as
such, either in a special "subsection" of the IPR web page, or perhaps a
separate web page altogether.

IOW, someone browsing the web page should not be confused as to whether an
entry is a patent-holder statement or a WG Chairs placeholder (yes, I do
realize that upon opening the link it might be clear which is which).

Just my opinion; I could be wrong.

Steve

---

From: Pekka Savola <[email-masked]>
Date: Mon, 28 Apr 2003 16:07:10 +0300 (EEST)

> Just my opinion; I could be wrong.

Totally agree.