Subject: Re: W3C patent policy draft reference

From: "Steven M. Bellovin" <[email-masked]>
Date: Wed, 20 Nov 2002 09:07:45 -0500

In message <03cd01c29062$eb60ce60$927ba8c0@ROSENGARDEN>, "Lawrence E. Rosen" wr
ites:

>
>I'm serious about wanting to understand IETF processes.  What would IETF
>expect to do if you discovered that a royalty-bearing patent blocked the
>implementation of an industry standard?  If you discovered that the
>patent was invented by someone who worked on creating the standard in
>the working group?  If you discovered that the inventor kept his patent
>secret until after the standard was published?  If you discovered that
>the inventor was another engineer in the cubicle next to the working
>group participant?  If you discovered that the inventor's manager
>ordered him to keep the invention secret from the IETF working group?  
>What would you do if the patent was licensed royalty-free but prohibited
>use under the GPL or other "IPR Impairing" license?  (Microsoft actually
>pulled that one in its CIFS license!)  In the absence of a policy that
>deals with all these issues, will IETF just wing it?
>
>At least one reason that Rambus lost its patent infringement lawsuit
>against Infineon was because Rambus failed to disclose its pending
>patents despite the written intellectual property rights policy of the
>standards-setting organization to which Rambus belonged.  If IETF
>doesn't have a written policy, then it is possible that even outrageous
>conduct like that of Rambus would go unpunished in the IETF context.  It
>is important legally to have a written patent policy.  
>

In fact, the IETF has recognized that case (and the earlier Dell case) 
for several years.  If I recall correctly, some of the disclosure 
provisions in 2026 were in direct response to the Dell case.  More 
recently, we've instituted the "note well" statement -- see the bottom 
of http://www.ietf.org/ipr.html .  And the existence of this working 
group is precisely to clarify those points, especially those that have 
to do with patents.  (In particular, Section 10 of 2026 mixes together 
patents and copyrights, which makes it a bit confusing; that's why the 
information has been split into two documents this time around.)

We do not have a policy on deprecating standards that have been 
approved in the face of such behavior.  Adopting one would be an 
interesting suggestion.  It's doubtful that we would or could attempt 
to sanction any company or individual that behaved that way -- since 
the IETF has no membership, we can't bar or suspend anyone from it.  
Instead, we'd leave that to the courts or regulatory agencies.  But 
changing a document's status is well within our powers.  (We do have 
policies in 2026 about verifying that IPR licensing is working properly 
before advancing a document along the standards track.)

This group cannot currently make such a change -- it's not within the 
current policy.  It's certainly something a rechartered group could do.

		--Steve Bellovin, http://www.research.att.com/~smb (me)
		http://www.wilyhacker.com ("Firewalls" book)

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---

From: Brian E Carpenter <[email-masked]>
Date: Wed, 20 Nov 2002 16:44:13 +0100

below...

> current policy.  It's certainly something a rechartered group could do.

However, one of the problems is that if the IETF decided to deprecate
(for example) RFC 1157 because someone started enforcing a patent
that reads on it, this wouldn't have the slightest effect in the real
world; people would still sell product described as conforming to
RFC 1157. And also, this would put the IETF in the position of acting
as judge and jury on the question of submarine patents. I think the IETF
would be incredibly foolish to expose itself to suit in that way.

   Brian