Subject: Re: Standards and patents

From: Scott Bradner <[email-masked]>
Date: Tue, 4 Apr 2000 05:26:05 -0400 (EDT)

you might study history - our process used to be that way & we changed it
to avoid problems that we found 

1/ refusal to negotiate
2/ false patent claims to delay the process
3/ patent claims from people who have nothing to do with the standards process
   and the claim could be years after the standard was adopted
4/ bringing the IETF into the business of determining the fairness of
   licensing terms

if you look at the current rules (rfc 2026) you will see that things
are not quite as simple as you imply - IPR is taken into account 
when it is time to advance a standard on the standards track

Scott

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Date: Mon, 03 Apr 2000 22:07:03 -0700
To: [email-masked]
From: Ken Krechmer <[email-masked]>
Subject: Standards and patents

All,

Knowing my interest in this subject, Randy Bloomfield of the International
Center for Standards Research (university of Colorado, Boulder
International Telecommunications Program) has been kind enough to forward a
number of e-mails on this issue.  Enough, so that I thought I might try to
contribute.

The IETF has taken a unique position in the world of standardization
organizations.  The IETF is not a formal nationally recognized
standardization organization, yet the IETF is far too important to operate
as a fora or consortia.  By way of explanation, fora or consortia are
almost always commercially funded and quite often have, as part of their
"ground rules," a requirement that all participants enter into some form of
technology sharing (cross licensing or negotiated).  In other words, IPR is
not only identified in most fora or consortia, it is also negotiated.  This
is a distinct difference from the formal standardization (recognized by one
or more governments) organizations where IPR is usually identified, but
negotiation is not allowed.

The IETF, in regard to IPR, acts like a little like a formal
standardization organization.  It identifies intellectual property rights
(IPR) but leaves off requiring negotiation of IPR.  This, as is being shown
in many formal standardization organizations, may cause standards
development to migrate to organizations that identify and negotiate.  I
don't offer this approach as a solution, only an alternative, as such
negotiation in some fora or consortia smacks of coercion (IMO) when smaller
companies are negotiating with larger.

I make no arguments that the current patent system is useful to any but
lawyers.  But changing such a system is a lengthy political process.  I
suggest that the grounds for changing the existing patent system may be
based on the concept that patents were designed to award value to the
inventor of "similar" products. That is, for each incarnation of a product
that was "similar" to the invention, the inventor could receive a new form
of value (credit creation for the economists in the crowd).

Now patents are being used to control a different property -
"compatibility" and controlling "compatibility" feels more like controlling
access and therefore unfair.  Of course, there is enormous value in
controlling compatibility (e.g., Microsoft APIs, Intel software
compatibility, IBM data communications until recently) and so companies
attempt to do so.  Some day, likely far in the future, possibly patent law
can change to recognize that allowing commercial control of compatibility,
except in most unique circumstances, is of less benefit to society.  But
the patent law for the control of similarity for over 200 years has worked
reasonably well to reward inventors, yet distribute their inventions more
widely and more rapidly. For further comments on this topic please see
Communications Standards and Patent Rights: Conflict or Coordination?
http://www.csrstds.com/star.html

Ken Krechmer
Fellow
International Center for Standards Research
Interdisciplinary Telecommunications Program
University of Colorado at Boulder

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From: Keith Moore <[email-masked]>
Date: Tue, 04 Apr 2000 18:30:34 -0400

>  IPR is taken into account 

and in practice, IPR is also taken into account by individual
participants (if they know about it) when they decide whether 
to contribute to a consensus for Proposed Standard. 

Keith