Subject: Question about why bother- If IPR Notices cannot stop areas from being developed...

From: "TS Glassey" <[email-masked]>
Date: Wed, 16 Jul 2008 13:18:50 -0700

Jorge as the IETF's legal counsel I want to ask a couple of very specific 
questions.

1) The first is why an IPR program that fails to notice anyone who makes 
claims inside it that there may be potential violations being done in the 
IETF is for anyway?

The issue with IPR is that if the rights are not given to the IETF as they 
were not in IPR 201 any action that violates that is something that the IETF 
itself is liable for. Or so anyone who looks at the process would think. 
Otherwise there is no point in making the declaration since it would be 
incumbent on the party to continuously donate time or spend-time of an IP 
Officer to verify that the IETF's publications do not run afoul of declared 
copyright prohibitions.

If the intent is to allow people to operate with informed consent of their 
participation, then maintaining that facility also makes the IETF liable for 
notifying anyone who is involved with efforts which would violate those 
restraints as well. Especially when those matters pertain to the existence 
or operations of IETF WG's.

2) That being said - it seems to me that it is incumbent on the IETF to do 
an IPR review prior to publishing anything that is submitted or allowing a 
WG to be formed. This also flows downhill onto the Publisher too otherwise 
it would be afoul of US Copyright Law. Don't you agree?

In the instance of GEOPRIV we (McNeil and I should have been notified 
through the Attorney listed) that the
   o- IETF created the GEOPRIV Working Group
   o- That the IETF was publishing documents which would violate those 
claims.

And to protect our patent filings, to do so with enough formal 
forward-notice to allow us to get a Court Order to prevent that publication 
as it directly violates IP Rights which the IETF has been formally told it 
does not and will not own and for which our own systems cannot be patented 
now because of the public work done here.

Any responses Jorge?

TS Glassey 

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---

From: "Steven M. Bellovin" <[email-masked]>
Date: Wed, 16 Jul 2008 17:14:17 -0400

On Wed, 16 Jul 2008 13:18:50 -0700
"TS Glassey" <[email-masked]> wrote:
 
>    o- That the IETF was publishing documents which would violate
> those claims.
> 
> forward-notice to allow us to get a Court Order to prevent that
> publication as it directly violates IP Rights which the IETF has been
> formally told it does not and will not own and for which our own
> systems cannot be patented now because of the public work done here.
> 
Todd: you've never yet answered the question of how a publication
infringes a patent?  The IETF is neither making, using, selling, or
importing the encumbered technology, nor offering to do the same.  How
does talking about patented technology infringe?

		--Steve Bellovin, http://www.cs.columbia.edu/~smb
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---

From: "Lawrence Rosen" <[email-masked]>
Date: Wed, 16 Jul 2008 14:26:25 -0700

> does talking about patented technology infringe?

I will regret entering this discussion, but here goes:

Todd is quite simply wrong. Anyone can talk and write about patented
technology all they want. Free as the air!!!! Intentionally so, under the
law, because that furthers the progress of science. 

IETF is not a patent infringer no matter how much you talk. No matter how
much you write.

And as far as I know, you're not required to publish notices, but thanks,
you do so. Now that Todd's notice has been posted, can we please all change
the subject?

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * cell: 707-478-8932 * fax: 707-485-1243
Skype: LawrenceRosen
Author of "Open Source Licensing: Software Freedom and 
                Intellectual Property Law" (Prentice Hall 2004)

> -----Original Message-----
> From: [email-masked] [mailto:[email-masked]] On Behalf
> Of Steven M. Bellovin
> Sent: Wednesday, July 16, 2008 2:14 PM
> To: TS Glassey
> Cc: [email-masked]; Contreras, Jorge; [email-masked]
> Subject: Re: Question about why bother- If IPR Notices cannot stop
> areasfrom being developed...
>

---

From: "TS Glassey" <[email-masked]>
Date: Wed, 16 Jul 2008 14:58:31 -0700

Steve - detailed responses to your questions are below!

Todd
----- Original Message ----- 
From: "Steven M. Bellovin" <[email-masked]>
To: "TS Glassey" <[email-masked]>
Cc: "Contreras, Jorge" <[email-masked]>; <[email-masked]>; 
<[email-masked]>
Sent: Wednesday, July 16, 2008 2:14 PM
Subject: Re: Question about why bother- If IPR Notices cannot stop areas 
from being developed...

> infringes a patent?

Yes I have. And in fact I have said this numerous times... In Japan once a 
publication is done for the first time the patent rights are done. Poof 
gone...This action also starts various clocks running here in the US too. So 
the IETF's actions in publishing content directly impact the patentability 
of IP everywhere on the earth.

How this impacts IETF IPR Filer's is that when the IETF  fails to notify 
those IPR notice holders they are unaware that those clocks are ticking and 
the Japan filing is out. Did I mention I own rights to a patent in Japan?

>  The IETF is neither making, using, selling, or
> importing the encumbered technology, nor offering to do the same.

Sure it is - thats why the IP is transfered formally in the filing of it 
right? So the IETF is directly and knowingly involved in activities which 
can prevent the patenting of IP in Japan and other places when it publishes 
document's which constitute prior art.

> How

Because people dont just talk in the IETF - they vet technology and 
designs... so doing anything that impacts anyone's ability to file patents 
anywhere on this planet, or that fraudulently gives the IETF 'rights' to IP 
that the submitting and vetting parties dont own or have rights to vet does 
impact the value of those IP rights protected under the umbrella of the 
patent.

I think this creates a "Constructive Responsibility" for the IETF to 
formally notify IPR Filer's of anything that might impact their IPRs PRIOR 
to its being published or accepted by the Trust. Why this is true is that 
IPR filers would have to constantly review each and every new IETF effort to 
verify it doesnt infringe - same is true for each RFC. No, the IETF created 
a "constructive notice responsibility" when it put the IPR Notice Practice 
in place and its failing to notice myself in this matter is an issue.

Further, the issue as to who owns the underlying IP being written about is 
another concern. The IETF mandates that the submitter not only legally 
represents the Sponsor, but also owns the IP being submitted (or at least 
controls it). When a pre-existing patent is cited that document's that the 
IETF doesnt own that IP, and when the IPR say's NO YOU CANT HAVE IT, then 
taking prior art from some controled source and deploying a derivative of it 
as an IETF work cannot meet the IETF's contribution rights, since the 
submitter of the work cannot claim ownership of anything that will allow 
them to implement the two physical instances of a 'thing' that the IETF 
requires for its Standards Track.

This is the exact claim I will be asserting in federal court against the 
IETF and the IPR WG and the GEOPRIV WG when we get there to resolve the IP 
rights violations that have occured.

In fact all they can claim is that they are writing a literary work about 
that technology since they dont own the technology itself. That allows them 
to publish this under Section 107 of the copyright code if legitmate 
standards research is going on, but since the Patent Notice says "NO NO NO" 
then this cannot happen inside the IETF whether anyone likes it or not (or 
so I assert).

Sorry - but I still think you are wrong here.

Todd

> No virus found in this incoming message.
> Checked by AVG - http://www.avg.com
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> 6:43 AM
>
>
>

---

From: "TS Glassey" <[email-masked]>
Date: Wed, 16 Jul 2008 15:16:15 -0700

----- Original Message ----- 
From: "Lawrence Rosen" <[email-masked]>
To: "'Steven M. Bellovin'" <[email-masked]>; "'TS Glassey'" 
<[email-masked]>
Cc: <[email-masked]>; "'Contreras, Jorge'" <[email-masked]>; 
<[email-masked]>
Sent: Wednesday, July 16, 2008 2:26 PM
Subject: RE: Question about why bother- If IPR Notices cannot stop areasfrom 
being developed...

> law, because that furthers the progress of science.

Talking about something i.e. having a cobnversation over a cup of coffee is 
fine. But undertaking a formal effort in a Standards Body after an IPR is 
filed is clearly another issue. Especially in a formal matter where a piece 
of intellectual property is being derived from that effort which the IETF is 
claiming ownership of especially under the Trust's licensing models.

> IETF is not a patent infringer no matter how much you talk. No matter how

Since the IETF is relicensing its literary works for any and all uses, 
including building the code models needed to create a working implementation 
of that IP I dont see how you could say anything like that.

> you do so. Now that Todd's notice has been posted, can we please all 

My notice to the IETF was posted years ago with IPR 201. The IETF chose to 
ignore that notice and form a WG which is creating IP which prevents our 
patenting various pieces of IP we spent considerable amount of money on.

---

From: "Lawrence Rosen" <[email-masked]>
Date: Wed, 16 Jul 2008 15:46:33 -0700

> claiming ownership of especially under the Trust's licensing models.

That too is wrong. You are proof yourself that saying formal things in a
standards body has no more weight than people are willing to give it. 

IETF members and the organization itself can talk and write about patents
all they want. They can ignore patent owners if they want. There may perhaps
be a *later* risk if someone actually implements products that embody
certain patents, but that's for later, and doesn't directly involve IETF.

> patenting various pieces of IP we spent considerable amount of money on.

Congratulations. That's all you needed to do. IETF working groups can ignore
it if they want; that isn't an infringing act. 

If you believe otherwise, I suggest you get a lawyer and sue someone.

/Larry

Lawrence Rosen

> From: TS Glassey [mailto:[email-masked]]
> Sent: Wednesday, July 16, 2008 3:16 PM
> To: [email-masked]; 'Steven M. Bellovin'
> Cc: [email-masked]; 'Contreras, Jorge'; [email-masked]

---

From: "Lawrence Rosen" <[email-masked]>
Date: Wed, 16 Jul 2008 16:03:30 -0700

> patenting various pieces of IP we spent considerable amount of money on.

Todd, if you were stupid enough to disclose your ideas before you filed for
patent protection, then don't blame IETF or anyone else for your donation to
the public domain. 

/Larry

Lawrence Rosen

> Of TS Glassey
> areasfrombeing developed...
> 
>

---

From: "TS Glassey" <[email-masked]>
Date: Wed, 16 Jul 2008 16:42:25 -0700

Larry lets break these down into individual questions and answer them one at 
a time here.

The first question is to whether IETF filings affect the patentability of 
the IP they pertain to. Whether that is either here or in other countries...

So YES OR  NO - does the publication of IETF works qualify as 'previous art' 
which would prevent a filing for patent's in Japan??? i.e. if I wanted to 
file a patent in Japan and there was a document filed in the IETF which 
described that IP would that prevent my patent from being granted in Japan?

And the second question is then DOES the filing of those same document's 
start the 1 year clocks running in the US, again YES or NO counsel???

==== SNIP =====

Todd Glassey

---

From: "TS Glassey" <[email-masked]>
Date: Wed, 16 Jul 2008 18:09:07 -0700

----- Original Message ----- 
From: "Lawrence Rosen" <[email-masked]>
To: "'TS Glassey'" <[email-masked]>; "'Steven M. Bellovin'" 
<[email-masked]>
Cc: <[email-masked]>; "'Contreras, Jorge'" <[email-masked]>; 
<[email-masked]>
Sent: Wednesday, July 16, 2008 4:03 PM
Subject: RE: Question about why bother- If IPR Notices cannot stop 
areasfrombeing developed...

> patent protection, then don't blame IETF or anyone else for your donation 

No no - the US Patent was filed in 1999 and issued in 2002. The Japan Patent 
issued in 2004. My claim is that because of this that the derivatives of 
these patents are not up for grabs and that we very likely own a core claim 
against most all of the GEOPRIV IP's. The IETF was specifically told that 
with the filing of IPR201 right?

My claim about the IPR process is that to be useful the process hass to 
notify the contact named that there is potentially a problem. Also unless it 
is the intent of the IETF to formally destroy the core global patent process 
then it and its member's have a responsibility to not intentionally damage 
others IP one would think.

At the very least there needs to be a notification process to inform those 
who filed IPR's when something is going to be published that will violate 
something in an IPR Claim.

Yes I am fully aware of the complexity of implementing that as well as its 
cost to the IETF as well... I just dont care.   The IETF needs a process 
that respects US and Internation IP Laws and makes it possible to support 
global use of controlled IP's and the IETF doesnt yet have that.

Todd

---

From: "Lawrence Rosen" <[email-masked]>
Date: Wed, 16 Jul 2008 18:11:23 -0700

I'm now out of this thread. No more please, before I'm tempted to call
someone stupid, which would entirely inappropriate on this list.

/Larry

> Sent: Wednesday, July 16, 2008 6:09 PM
> Subject: Re: Question about why bother- If IPR Notices cannot
> stopareasfrombeing developed...
> 
> 
> > patent protection, then don't blame IETF or anyone else for your
> donation
> > to
> > the public domain.
> 
> >> Talking about something i.e. having a cobnversation over a cup of
> coffee
> >> is
> >> of intellectual property is being derived from that effort which the
> IETF
> >> is

---

From: "C.T. Aiken" <[email-masked]>
Date: Wed, 16 Jul 2008 21:55:41 -0400

> So YES OR  NO - does the publication of IETF works qualify as 'previous
> art' which would prevent a filing for patent's in Japan??? i.e. if I wanted
> to file a patent in Japan and there was a document filed in the IETF which
> described that IP would that prevent my patent from being granted in Japan

Depends if its a first to file or a first to invent jurisdiction. In the
U.S., the IETF's publication of an ID/RFC has no effect on patentability if
you can show you conceived of and/or reduced to practice first. First to
patent, if you apply first...you know the rest.

> start the 1 year clocks running in the US, again YES or NO counsel???

It would seem so, if the publication is sufficiently detailed to permit
someone reasonably skilled in the art to reconstruct the patentable
technology.

C.T. Aiken
--------------------------------------------------
SSRN: http://ssrn.com/author=690437
--------------------------------------------------
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[email-masked]
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---

From: "TS Glassey" <[email-masked]>
Date: Wed, 16 Jul 2008 18:50:14 -0700

Actually NO - I need you to formally answer the question about the filing of 
document's and that's effect on the filing of patents in Japan and the US 
Timeclocks.

Todd

----- Original Message ----- 
From: "Lawrence Rosen" <[email-masked]>
To: "'TS Glassey'" <[email-masked]>; "'Steven M. Bellovin'" 
<[email-masked]>
Cc: <[email-masked]>; "'Contreras, Jorge'" <[email-masked]>; 
<[email-masked]>
Sent: Wednesday, July 16, 2008 6:11 PM
Subject: RE: Question about why bother- If IPR Notices cannot 
stopareasfrombeing developed...

>> >> My notice to the IETF was posted years ago with IPR 201. The IETF 
>> >> chose
>> >> to
>> >> > technology all they want. Free as the air!!!! Intentionally so, 
>> >> > under
>> >> the
>> >> > IETF is not a patent infringer no matter how much you talk. No 
>> >> > matter
>> >> how
>> >> > much you write.
>> >>
>> >> My notice to the IETF was posted years ago with IPR 201. The IETF 
>> >> chose
>> >> to
> Version: 8.0.138 / Virus Database: 270.5.0/1556 - Release Date: 7/16/2008 
> 4:56 PM
>
>

---

From: "C.T. Aiken" <[email-masked]>
Date: Wed, 16 Jul 2008 22:46:09 -0400

> global use of controlled IP's and the IETF doesnt yet have that.
Anyone feel free to correct me if I am wrong (especially since I am fairly
new to the WG), but to me, it doesn't seem like the IETF's overriding
responsibility to police individual IP claims. At least in the U.S. system
it is the patentholder/seeker who has the responsibility to protect their
IP, not third parties who are interested in the IP. If groups like the IETF
create Standards (with an adequate disclaimer) that include IP potentially
covered by one or more patents, fine, let those reducing the IP to practice
determine whether the risk of litigation outweighs the value of using the
IP.

Would it be nice to know if your IP is being considered in a Draft? Sure.
But an organization with limited resources like the IETF does not have the
manpower or funding to make complex determinations of patent law. I would
think if you are making an IPR filing it would behoove you to track the
process and make objections to the use of your IP along the way. It is
important to note, though, that creating a Standard is miles away from
actual infringement.

C.T. Aiken

---

From: "TS Glassey" <[email-masked]>
Date: Wed, 16 Jul 2008 21:08:20 -0700

----- Original Message ----- 
  From: C.T. Aiken 
  To: TS Glassey 
  Cc: [email-masked] ; Steven M. Bellovin ; [email-masked] ; Contreras, Jorge ; [email-masked] 
  Sent: Wednesday, July 16, 2008 6:55 PM
  Subject: Re: Was: Re: Question - Is: Can IETF filings affect Japan or US Patent Filings?

    Larry lets break these down into individual questions and answer them one at a time here.

    The first question is to whether IETF filings affect the patentability of the IP they pertain to. Whether that is either here or in other countries...

    So YES OR  NO - does the publication of IETF works qualify as 'previous art' which would prevent a filing for patent's in Japan??? i.e. if I wanted to file a patent in Japan and there was a document filed in the IETF which described that IP would that prevent my patent from being granted in Japan

  Depends if its a first to file or a first to invent jurisdiction. 

You mean in Japan? - My understanding is that any public discussion's of the technology or significant parts of it will invalidate the filing. Our US patent was filed first though. 

  In the U.S., the IETF's publication of an ID/RFC has no effect on patentability if you can show you conceived of and/or reduced to practice first.

I am more worried about derivatives of work that the underlying IP is privately owned.

   First to patent, if you apply first...you know the rest.

    And the second question is then DOES the filing of those same document's start the 1 year clocks running in the US, again YES or NO counsel???

  It would seem so, if the publication is sufficiently detailed to permit someone reasonably skilled in the art to reconstruct the patentable technology.

Then IETF document's do cause problems for those who would be trying to protect IP in those areas where IPR declarations were produced. That needs to be factored into the IETF's IPR processes and its Licensing through the Trust since its now clear that the IETF may create IP it doesnt own the underlying genesis or IP under. 

Todd

---

From: "Lawrence Rosen" <[email-masked]>
Date: Wed, 16 Jul 2008 23:24:27 -0700

Once again, Todd, your email is legal nonsense. 

Even if Todd has a patent it has nothing to do with IETF's right to create
working groups and to propose specifications-even if they are so-called
"derivatives" of Todd's work. [Thus confusing copyright and patent law, by
the way!] IETF owes Todd nothing in this regard and we can continue to do
our thing with impunity. 

C.T. Aiken's is right: It is Todd's responsibility to police his own IP.
Neither I, nor C.T., nor Jorge, nor anyone else on here, owes Todd free
answers to any of his questions. 

Todd and anyone else should be encouraged to consult their own attorneys if
they believe they have an IP claim against IETF or anyone else relating to
IETF specifications. 

The courts and bar associations have ways of silencing attorneys when we
spout nonsense. But we need a way of dealing with nonsense from
non-attorneys. As a matter of policy, we should recommend that specific
claims of infringement or other torts by non-attorneys should simply be
prohibited on IETF mailing lists, except for the filing of
properly-formatted disclosures. Anyone who's serious should get an attorney
to speak for them. 

/Larry

  _____  

From: TS Glassey [mailto:[email-masked]] 
Sent: Wednesday, July 16, 2008 9:08 PM
To: C.T. Aiken
Cc: [email-masked]; Steven M. Bellovin; [email-masked]; Contreras,
Jorge; [email-masked]
Subject: Re: Was: Re: Question - Is: Can IETF filings affect Japan or US
Patent Filings?

----- Original Message ----- 

From: C.T. Aiken <mailto:[email-masked]>  

To: TS Glassey <mailto:[email-masked]>  

Cc: [email-masked] ; Steven M. <mailto:[email-masked]>  Bellovin ;
[email-masked] ; Contreras, Jorge <mailto:[email-masked]>  ;
[email-masked] 

Subject: Re: Was: Re: Question - Is: Can IETF filings affect Japan or US
Patent Filings?

You mean in Japan? - My understanding is that any public discussion's of the
technology or significant parts of it will invalidate the filing. Our US
patent was filed first though. 

In the U.S., the IETF's publication of an ID/RFC has no effect on
patentability if you can show you conceived of and/or reduced to practice
first.

I am more worried about derivatives of work that the underlying IP is
privately owned.

 

Then IETF document's do cause problems for those who would be trying to
protect IP in those areas where IPR declarations were produced. That needs
to be factored into the IETF's IPR processes and its Licensing through the
Trust since its now clear that the IETF may create IP it doesnt own the
underlying genesis or IP under. 

Todd

---

From: "C.T. Aiken" <[email-masked]>
Date: Thu, 17 Jul 2008 09:47:50 -0400

Todd,

I would rather keep this discusson on WG.

You really need to talk to an attorney about this and have him explain these
things in depth. I cannot give you legal advice, and I suspect few if any of
the other people in the WG have the time or desire to do so either. Its
tough when its a technical WG about a legal subject. If your perspective as
a supposedly wounded IP holder is not given weight by those in the group
with more legal knowledge than you, that should say something.

I agree with Larry, if you feel that the IETF has done something wrong in
relation to your IP and its development of GEOPRIV, consult your own legal
counsel and take action.

This will be my last post in this thread.

> Claims are different than issued patents I think. Notice of a filed or
> issued patent should halt the publication of IETF submissions in that IP
> area until the issues of the IETF's use of that license is resolved. The
> IETF needs to be upright a nd err on the side of conservative IP ownership.
> Its standards must have real value and that is a key piece of that I think.
>

I see your point, but in the U.S. at least, people can infringe all they
want and if the actual IP holder does not challenge the infringing use, the
infringer goes scot free. It is your opinion that the IETF should be more
conservative regarding IP at increased cost to the IETF, and that is fine.
It seems that most others in the IETF disagree with you, and that is the
problem of being a minority voice in a quasi-democratic society.

> So w
> hen someone files notice of an existing patent then those rights are pretty
> well defined. Unless they specifically convey interest in some of those
> rights, then one would think disclosure would be mandatory. That the AD
> should have to formally say to a WG Chair when they form a WG that there
> were IP Claims against technology that might compromise their ability to act
> per the IETF's mission in that IP area.
>
> It also should  require some link to that WG's Web Page so that all of the
> related IP Claims or postings against those IP areas could be disclosed one
> would think.
>

Rights are theoretically "well-defined" when a patent exists, but in
practice that is far from the case; the sheer number of patent lawsuits in
this country should show that. Again, your opinion is valid, but if the IETF
is offering Standards with disclaimers and things have been fine thus far, I
don't see why they would undergo the cost of implementing additional complex
systems.

>
> At least in the U.S. system it is the patentholder/seeker who has the
> responsibility to protect their IP, not third parties who are interested in
> the IP.
>
>  Are you saying that you think that third parties should have the right to
> just use other IP when they want to in a public manner?
>
>

I am not making a normative statement, merely a descriptive one.

Let me ask, when the someone, like the IETF for instance,  decides to step
> into IP that they are told belongs to someone else are you saying that its
> the IP Owner's responsibility to bring legal means to place to stop those IP
> violations?... is that what you are saying?
>

 Exactly. You may not like it, but that is how the system works in the U.S.

>
>
> If groups like the IETF create Standards (with an adequate disclaimer) that
> include IP potentially covered by one or more patents, fine, let those
> reducing the IP to practice determine whether the risk of litigation
> outweighs the value of using the IP.
>
>
>  The problem is that the derivative rights against that IP cant be
> established by the people doing the genesis and since they don't own it they
> cant convey it to the IETF. Meaning that they also cannot assign their work
> through any of the processes including the NoteWell covered channels
> because of this either.
>
> Also the development of those IETF sponsored initiatives would also violate
> the IP rights of the people who actually own the IP as well because the
> IETF's production of those derivatives in a public forum like the IETF's
> operations would invalidate trade-secret type IP management as well as
> derivatives. A patent defines an area which either can or cannot be used by
> something like the IETF - and if the patent's rights are not conveyed to it,
> then it cannot transgress those IP instances.
>
> In both instances I am betting that the ownership of the IP itself cannot
> be 'perfected' without resolving this.
>

It can "transgress" all it wants to under the U.S. system, although my
knowledge of other patent systems is more fuzzy. Sure, without a better
internal system IP holders may not be able to officially convey IP to the
IETF but, again, it is the responsibility of the IP holder to bring
infringers to court. All the IP holder has to do is not sue, and they are
implicitly giving the IETF permission to use their IP.

> process and make objections to the use of your IP along the way.
>
>
>
> Are you suggesting that the IETF has some right to intentionally create IP
> which violates its posted IP notices? That there is no responsibility about
> IP binderies.
>

Of course the IETF has no "right to violate" other people's IP. I am simply
saying that it probably does not have the resources to investigate every
posted IP notice with the legal and technical thoroughness to make a
determination about the IPR's validity and scope. In a best case scenario,
it would have the resources to do this, but since it does not, it puts a
disclaimer on Standards.

>  It is important to note, though, that creating a Standard is miles away
> from actual infringement.
>
> Actually to get a standard, the parties involved have to build two
> instances of the protocol service to document and prove its interoperability
> between two unique instances of the 'thing'. The IETF's use license for IP
> coming in must support that.
>
> So then what's the purpose of the IETF's IPR process? so that people can
> knowingly do damage to other's IP's - It sure seems like that's a distinct
> possibility. What does this do with a responsibility to notify the sponsor's
> of this as well. Seems line ANY IPR complicates the process. The argument
> that the IETF is not equipped to handle that may not matter.
>
>

This still does not change the fact that the onus is still on the IP holder
to litigate his claim, regardless of what the IETF is doing.

Again, this is my last posting on this thread Todd. Please talk to an
attorney if you are worried about your rights.

C.T. Aiken

---

From: "TS Glassey" <[email-masked]>
Date: Thu, 17 Jul 2008 07:55:46 -0700

Counsel - discrediting me through a maze of smoke and mirrors is not going to work this time around. 

Answer the questions or stop using a Lawyers Signature on this list Larry - Oh and when you sign an email as an officer of the Court and offer a legal opinion here, you are practicing law for the list on behalf of the IETF. So either answer the question or you and I can do the Dance before the Ethics Committee down in LA.

The question was Does the publication of IETF document's affect the patent-filing abilities of those who might own IP which those documents disclosed

    1)    Does an IETF publication constitute a formal public disclosure such that Patent Rights in Japan are affected? YES or NO...

    2)    Does the publication of IETF Technology Descriptions trigger patent time-clocks here in the US and in other Countries - YES or NO...
  ----- Original Message ----- 
  From: Lawrence Rosen 
  To: [email-masked] 
  Cc: [email-masked] ; 'Contreras, Jorge' 
  Sent: Wednesday, July 16, 2008 11:24 PM
  Subject: RE: Was: Re: Question - Is: Can IETF filings affect Japan or USPatent Filings?

No actually its not Counsel - your responses are based on trying to discredit me without ever answering the specific questions I asked since you know I am right there. 

  Even if Todd has a patent it has nothing to do with IETF's right to create working groups and to propose specifications-even if they are so-called "derivatives" of Todd's work. [Thus confusing copyright and patent law, by the way!] IETF owes Todd nothing in this regard and we can continue to do our thing with impunity. 

This constitutes formal legal advice to the IETF I am hoping - 

  C.T. Aiken's is right: It is Todd's responsibility to police his own IP. Neither I, nor C.T., nor Jorge, nor anyone else on here, owes Todd free answers to any of his questions. 

  Todd and anyone else should be encouraged to consult their own attorneys if they believe they have an IP claim against IETF or anyone else relating to IETF specifications. 

  The courts and bar associations have ways of silencing attorneys when we spout nonsense. But we need a way of dealing with nonsense from non-attorneys. As a matter of policy, we should recommend that specific claims of infringement or other torts by non-attorneys should simply be prohibited on IETF mailing lists, except for the filing of properly-formatted disclosures. Anyone who's serious should get an attorney to speak for them. 

  /Larry

------------------------------------------------------------------------------

  From: TS Glassey [mailto:[email-masked]] 
  Sent: Wednesday, July 16, 2008 9:08 PM
  To: C.T. Aiken
  Cc: [email-masked]; Steven M. Bellovin; [email-masked]; Contreras, Jorge; [email-masked]
  Subject: Re: Was: Re: Question - Is: Can IETF filings affect Japan or US Patent Filings?

    ----- Original Message ----- 

    From: C.T. Aiken 

    To: TS Glassey 

     

     

  Todd

No virus found in this incoming message.
Checked by AVG - http://www.avg.com 
Version: 8.0.138 / Virus Database: 270.5.0/1556 - Release Date: 7/16/2008 4:56 PM

------------------------------------------------------------------------------

---

From: "TS Glassey" <[email-masked]>
Date: Thu, 17 Jul 2008 08:18:00 -0700

CT - discrediting me without answering the questions isnt going to work here. 

Answer the two questions - 

1)    Does the IETF's publishing a work impact the ability to patent that same work in Japan?  YES or NO

2)    Does the IETF's publishing a RFC with enough detail in it to build a stack constitute enough prior Art Publication to start US 1-Year Time Clocks running

YES or NO.

Todd Glassey
  ----- Original Message ----- 
  From: C.T. Aiken 
  To: TS Glassey 
  Cc: [email-masked] ; Steven M. Bellovin ; [email-masked] ; Contreras, Jorge ; [email-masked] 
  Sent: Thursday, July 17, 2008 6:47 AM
  Subject: Re: Question about why bother- If IPR Notices cannot stop areasfrombeing developed...

  Todd,

---

From: "TS Glassey" <[email-masked]>
Date: Thu, 17 Jul 2008 08:00:26 -0700

----- Original Message ----- 
  From: C.T. Aiken 
  To: TS Glassey 
  Cc: [email-masked] ; Steven M. Bellovin ; [email-masked] ; Contreras, Jorge ; [email-masked] 
  Sent: Thursday, July 17, 2008 6:47 AM
  Subject: Re: Question about why bother- If IPR Notices cannot stop areasfrombeing developed...

  Todd, 

  You really need to talk to an attorney about this and have him explain these things in depth. I cannot give you legal advice, and I suspect few if any of the other people in the WG have the time or desire to do so either. Its tough when its a technical WG about a legal subject. If your perspective as a supposedly wounded IP holder is not given weight by those in the group with more legal knowledge than you, that should say something.

  I agree with Larry, if you feel that the IETF has done something wrong in relation to your IP and its development of GEOPRIV, consult your own legal counsel and take action. 

Thanks - we will take all the appropriate actions.

    Claims are different than issued patents I think. Notice of a filed or issued patent should halt the publication of IETF submissions in that IP area until the issues of the IETF's use of that license is resolved. The IETF needs to be upright a nd err on the side of conservative IP ownership. Its standards must have real value and that is a key piece of that I think.

  I see your point, but in the U.S. at least, people can infringe all they want and if the actual IP holder does not challenge the infringing use, the infringer goes scot free. It is your opinion that the IETF should be more conservative regarding IP at increased cost to the IETF, and that is fine. It seems that most others in the IETF disagree with you, and that is the problem of being a minority voice in a quasi-democratic society.

    So w
    hen someone files notice of an existing patent then those rights are pretty well defined. Unless they specifically convey interest in some of those rights, then one would think disclosure would be mandatory. That the AD should have to formally say to a WG Chair when they form a WG that there were IP Claims against technology that might compromise their ability to act per the IETF's mission in that IP area. 

    It also should  require some link to that WG's Web Page so that all of the related IP Claims or postings against those IP areas could be disclosed one would think. 

  Rights are theoretically "well-defined" when a patent exists, but in practice that is far from the case; the sheer number of patent lawsuits in this country should show that. Again, your opinion is valid, but if the IETF is offering Standards with disclaimers and things have been fine thus far, I don't see why they would undergo the cost of implementing additional complex systems. 

      At least in the U.S. system it is the patentholder/seeker who has the responsibility to protect their IP, not third parties who are interested in the IP. 

    Are you saying that you think that third parties should have the right to just use other IP when they want to in a public manner? 

    Let me ask, when the someone, like the IETF for instance,  decides to step into IP that they are told belongs to someone else are you saying that its the IP Owner's responsibility to bring legal means to place to stop those IP violations?... is that what you are saying? 

      If groups like the IETF create Standards (with an adequate disclaimer) that include IP potentially covered by one or more patents, fine, let those reducing the IP to practice determine whether the risk of litigation outweighs the value of using the IP.

    The problem is that the derivative rights against that IP cant be established by the people doing the genesis and since they don't own it they cant convey it to the IETF. Meaning that they also cannot assign their work through any of the processes including the NoteWell covered channels  because of this either. 

    Also the development of those IETF sponsored initiatives would also violate the IP rights of the people who actually own the IP as well because the IETF's production of those derivatives in a public forum like the IETF's operations would invalidate trade-secret type IP management as well as derivatives. A patent defines an area which either can or cannot be used by something like the IETF - and if the patent's rights are not conveyed to it, then it cannot transgress those IP instances. 

    In both instances I am betting that the ownership of the IP itself cannot be 'perfected' without resolving this. 

  It can "transgress" all it wants to under the U.S. system, although my knowledge of other patent systems is more fuzzy. Sure, without a better internal system IP holders may not be able to officially convey IP to the IETF but, again, it is the responsibility of the IP holder to bring infringers to court. All the IP holder has to do is not sue, and they are implicitly giving the IETF permission to use their IP.

      Would it be nice to know if your IP is being considered in a Draft? Sure. But an organization with limited resources like the IETF does not have the manpower or funding to make complex determinations of patent law. I would think if you are making an IPR filing it would behoove you to track the process and make objections to the use of your IP along the way.

    Are you suggesting that the IETF has some right to intentionally create IP which violates its posted IP notices? That there is no responsibility about IP binderies.

  Of course the IETF has no "right to violate" other people's IP. I am simply saying that it probably does not have the resources to investigate every posted IP notice with the legal and technical thoroughness to make a determination about the IPR's validity and scope. In a best case scenario, it would have the resources to do this, but since it does not, it puts a disclaimer on Standards.

      It is important to note, though, that creating a Standard is miles away from actual infringement.
    Actually to get a standard, the parties involved have to build two instances of the protocol service to document and prove its interoperability between two unique instances of the 'thing'. The IETF's use license for IP coming in must support that.  

    So then what's the purpose of the IETF's IPR process? so that people can knowingly do damage to other's IP's - It sure seems like that's a distinct possibility. What does this do with a responsibility to notify the sponsor's of this as well. Seems line ANY IPR complicates the process. The argument that the IETF is not equipped to handle that may not matter.

  This still does not change the fact that the onus is still on the IP holder to litigate his claim, regardless of what the IETF is doing.

  Again, this is my last posting on this thread Todd. Please talk to an attorney if you are worried about your rights.

  C.T. Aiken

---

From: "Steven M. Bellovin" <[email-masked]>
Date: Thu, 17 Jul 2008 13:37:03 -0400

On Thu, 17 Jul 2008 08:18:00 -0700
"TS Glassey" <[email-masked]> wrote:

---

From: "Contreras, Jorge" <[email-masked]>
Date: Thu, 17 Jul 2008 14:19:00 -0400

Larry is participating in this discussion as a member of the community
and not as "counsel" to the IETF.  There is no attorney-client
relationship between Larry and the IETF, and Larry does not speak for
the IETF.  This list is merely an open discussion forum for matters
relating to topics currently being considered by the IETF's IPR-WG.  

________________________________

	From: TS Glassey [mailto:[email-masked]] 
	Sent: Thursday, July 17, 2008 10:56 AM
	To: [email-masked]; [email-masked]
	Cc: [email-masked]; Contreras, Jorge
	Subject: Re: Was: Re: Question - Is: Can IETF filings affect
Japan or USPatent Filings?

	Counsel - discrediting me through a maze of smoke and mirrors is
not going to work this time around. 
	 
	Answer the questions or stop using a Lawyers Signature on this
list Larry - Oh and when you sign an email as an officer of the Court
and offer a legal opinion here, you are practicing law for the list on
behalf of the IETF. So either answer the question or you and I can do
the Dance before the Ethics Committee down in LA.
	 
	The question was Does the publication of IETF document's affect
the patent-filing abilities of those who might own IP which those
documents disclosed
	 
	    1)    Does an IETF publication constitute a formal public
disclosure such that Patent Rights in Japan are affected? YES or NO...
	 
	    2)    Does the publication of IETF Technology Descriptions
trigger patent time-clocks here in the US and in other Countries - YES
or NO...

		----- Original Message ----- 
		From: Lawrence Rosen <mailto:[email-masked]>  
		To: [email-masked] 
		Cc: [email-masked] ; 'Contreras, Jorge'
<mailto:[email-masked]>  
		Sent: Wednesday, July 16, 2008 11:24 PM
		Subject: RE: Was: Re: Question - Is: Can IETF filings
affect Japan or USPatent Filings?

	No actually its not Counsel - your responses are based on trying
to discredit me without ever answering the specific questions I asked
since you know I am right there. 

		Even if Todd has a patent it has nothing to do with
IETF's right to create working groups and to propose specifications-even
if they are so-called "derivatives" of Todd's work. [Thus confusing
copyright and patent law, by the way!] IETF owes Todd nothing in this
regard and we can continue to do our thing with impunity. 

		C.T. Aiken's is right: It is Todd's responsibility to
police his own IP. Neither I, nor C.T., nor Jorge, nor anyone else on
here, owes Todd free answers to any of his questions. 

		Todd and anyone else should be encouraged to consult
their own attorneys if they believe they have an IP claim against IETF
or anyone else relating to IETF specifications. 

		The courts and bar associations have ways of silencing
attorneys when we spout nonsense. But we need a way of dealing with
nonsense from non-attorneys. As a matter of policy, we should recommend
that specific claims of infringement or other torts by non-attorneys
should simply be prohibited on IETF mailing lists, except for the filing
of properly-formatted disclosures. Anyone who's serious should get an
attorney to speak for them. 

		/Larry

________________________________

		From: TS Glassey [mailto:[email-masked]] 
		Sent: Wednesday, July 16, 2008 9:08 PM
		To: C.T. Aiken
		Cc: [email-masked]; Steven M. Bellovin;
[email-masked]; Contreras, Jorge; [email-masked]
		Subject: Re: Was: Re: Question - Is: Can IETF filings
affect Japan or US Patent Filings?

			----- Original Message ----- 

			Cc: [email-masked] ; Steven M. Bellovin
<mailto:[email-masked]>  ; [email-masked] ; Contreras, Jorge
<mailto:[email-masked]>  ; [email-masked] 

			Subject: Re: Was: Re: Question - Is: Can IETF
filings affect Japan or US Patent Filings?

				Larry lets break these down into
individual questions and answer them one at a time here.
				
				The first question is to whether IETF
filings affect the patentability of the IP they pertain to. Whether that
is either here or in other countries...
				
				So YES OR  NO - does the publication of
IETF works qualify as 'previous art' which would prevent a filing for
patent's in Japan??? i.e. if I wanted to file a patent in Japan and
there was a document filed in the IETF which described that IP would
that prevent my patent from being granted in Japan

			Depends if its a first to file or a first to
invent jurisdiction. 

		You mean in Japan? - My understanding is that any public
discussion's of the technology or significant parts of it will
invalidate the filing. Our US patent was filed first though. 

			In the U.S., the IETF's publication of an ID/RFC
has no effect on patentability if you can show you conceived of and/or
reduced to practice first.

		I am more worried about derivatives of work that the
underlying IP is privately owned.

			 First to patent, if you apply first...you know
the rest.

				And the second question is then DOES the
filing of those same document's start the 1 year clocks running in the
US, again YES or NO counsel???

			It would seem so, if the publication is
sufficiently detailed to permit someone reasonably skilled in the art to
reconstruct the patentable technology.

		Then IETF document's do cause problems for those who
would be trying to protect IP in those areas where IPR declarations were
produced. That needs to be factored into the IETF's IPR processes and
its Licensing through the Trust since its now clear that the IETF may
create IP it doesnt own the underlying genesis or IP under. 

		Todd

		No virus found in this incoming message.
		Checked by AVG - http://www.avg.com 
		Version: 8.0.138 / Virus Database: 270.5.0/1556 -
Release Date: 7/16/2008 4:56 PM

________________________________

---

From: "TS Glassey" <[email-masked]>
Date: Thu, 17 Jul 2008 11:33:39 -0700

More Smoke and Mirrors Counsel.
  ----- Original Message ----- 
  From: Contreras, Jorge 
  To: TS Glassey ; [email-masked] ; [email-masked] 
  Cc: [email-masked] 
  Sent: Thursday, July 17, 2008 11:19 AM
  Subject: RE: Was: Re: Question - Is: Can IETF filings affect Japan or USPatent Filings?

  Larry is participating in this discussion as a member of the community and not as "counsel" to the IETF.  

No one suggested there was Counsel, or that there was any formal relationship between the two except with Larry as a participating member of the WG. 

So we are real clear on this Jorge, what was suggested is that he was rendering legal advice in an Amicus form in response to the list by making specific assurance as to the legal veracity of my claim... He assured the list with impunity that there was no problem. That as a Court Officer constitutes formal advice as far as I can tell and I think we both know that to be true. 

But the real issue here is that he never answered the two questions, and for that matter Counsel neither have you although you have been asked them a number of times. 

  There is no attorney-client relationship between Larry and the IETF, and Larry does not speak for the IETF.  This list is merely an open discussion forum for matters relating to topics currently being considered by the IETF's IPR-WG.  

Then why dont you formally answer those first two questions counsel ... about Japanese Patent Rights after IETF publicaiton and how that effects the 1 year clocks that public disclosure starts in the US.

Todd Glassey

----------------------------------------------------------------------------
    From: TS Glassey [mailto:[email-masked]] 
    Sent: Thursday, July 17, 2008 10:56 AM
    To: [email-masked]; [email-masked]
    Cc: [email-masked]; Contreras, Jorge
    Subject: Re: Was: Re: Question - Is: Can IETF filings affect Japan or USPatent Filings?

      ----- Original Message ----- 
      From: Lawrence Rosen 
      To: [email-masked] 
      Cc: [email-masked] ; 'Contreras, Jorge' 
      Sent: Wednesday, July 16, 2008 11:24 PM
      Subject: RE: Was: Re: Question - Is: Can IETF filings affect Japan or USPatent Filings?

       

      /Larry

--------------------------------------------------------------------------

       

        ----- Original Message ----- 

        From: C.T. Aiken 

        To: TS Glassey 

         

         

      Todd

--------------------------------------------------------------------------

Version: 8.0.138 / Virus Database: 270.5.0/1558 - Release Date: 7/17/2008 9:56 AM

---

From: "Steven M. Bellovin" <[email-masked]>
Date: Thu, 17 Jul 2008 15:04:53 -0400

On Thu, 17 Jul 2008 08:18:00 -0700
"TS Glassey" <[email-masked]> wrote:

> 2)    Does the IETF's publishing a RFC with enough detail in it to
> build a stack constitute enough prior Art Publication to start US
> 1-Year Time Clocks running
> 
I composed a long answer to you but it seems to have been eaten by
some mailer problems I was having (hence the blank message).  I'll
summarize by saying that the answer to your first question is NO and
the second question is ill-formed.  Bear in mind that I'm not a lawyer
and especially not your lawyer or patent cosultant.

A patent *is* a publication.  In fact, the government grants you a
limited-term monopoly on your invention in exchange for that
publication.  IETF documents subsequent to your patent have exactly
zero bearing on patentability in Japan -- once your patent has issued,
the material is published; further publication has no bearing on the
question.  Even if it did, the IETF has no duty to help you patent
something elsewhere.  There's something called the patent co-operation
treaty, which I believe governs filing in more than one country.  Ask
your own attorney about it at time of initial filing.

As for the second question -- again, if the patent has issued, there's
no one-year clock.  If your patent hasn't issued and someone else comes
up with the same idea independently, it has no bearing on your priority
date for the patent.  In fact, if I suspect -- from legitimately-
acquired knowledge -- that you're working in some field, it's often to
my advantage to try to beat you to particular inventions, precisely to
gain an earlier priority date and preclude you from obtaining the
patent.  History is rife with stories of simultaneous and
near-simultaneous invention; look at the history of Alexander Graham
Bell's patents.  (Yes, I know that there's a lot more to that story.)

You seem to have a very different idea of how the patent and legal
systems work than the rest of us do.  Please consult your own attorney,
who at least will receive payment for listening to you.  As for me --
I'm posting this last message in attempt to shut down this thread,
before the chair rightly asks me to stop because we're getting off-topic
for the mailing list.  For the Nth time, if you think the IETF should
adopt a different policy on doing work in a patent-encumbered area,
write an I-D for this group to discuss.

---

From: "TS Glassey" <[email-masked]>
Date: Thu, 17 Jul 2008 15:01:49 -0700

----- Original Message ----- 
From: "Steven M. Bellovin" <[email-masked]>
To: "TS Glassey" <[email-masked]>
Cc: <[email-masked]>
Sent: Thursday, July 17, 2008 12:04 PM
Subject: Re: Question about why bother- If IPR Notices cannot stop 

> publication.

You mean the Priority Date right? - the date from the original filing.

> IETF documents subsequent to your patent have exactly
> question.

This is not true - derivatives must all be filed before their public 
disclosure or they are 'prevented' in Japan according to my Tokyo based 
lawyer.

> Even if it did, the IETF has no duty to help you patent
> something elsewhere.

No but the IETF cannot enter into a conspiracy to take something and prevent 
its patenting as a derivative work. The issue here is that the IETF was 
formally notified through its IPR process that it had no rights to the 
original works meaning no matter what that it cannot create the standard 
since the derivative license is tied to the original patent. That the 
disclosure was made, and so it created constructive notice that this license 
would not be forthcoming.

> There's something called the patent co-operation

I have ... and Japan is one of the hold-outs to this no-prior disclosure 
rule.
> no one-year clock.

Again Steve - we are not talking about the original patent - I and McNeil 
already own those rights. What I am talking about here is the derivatives. 
and FWIW None of which can be used in any product or service without our 
release. We will be formally notifying the sponsor's legal departments of 
this as well.

>  If your patent hasn't issued and someone else comes
> date for the patent.

yep... its all about the filing date for the GeoSpatial Controls - and that 
was years before anyone here came up with another pass at my/our control 
models.

> In fact, if I suspect -- from legitimately-

Or Thomas Edison's for that matter.

> who at least will receive payment for listening to you.

Yeah - but the real issue is how to recover those costs for correcting the 
lies and misrepresentations that the IETF is putting in place here.

> As for me --