Subject: Process proposal and justification for augmenting RFC 2026

From: Paul Gleichauf <[email-masked]>
Date: Fri, 15 Nov 2002 14:26:07 -0800

This is the first of a pair of promised messages to propose a more set of 
comprehensive mechanisms for modification of RFC 2026. These suggestions 
are within the framework of the IETF as a voluntary organization that 
relies on social mechanisms to influence member behavior. They do not set 
out to create membership or liability infrastructure to support an 
broadening of the IETF charter.

These documents are not being bundled as a draft because of the 
controversial and preliminary nature of the discussion to date. I will take 
the responsibility to do so after the Atlanta meeting if asked to do so.

This first message concentrates on a Process for managing IPR within the 
overall RFC 2026 model. The second message adds a statement of principled 
philosophy to clarify principles and expected good behavior.

The rest of this message is split in two parts. The first is an attempt at 
a succinct statement of the envisioned process. The second part is more 
lengthy background material to justify it.

Paul Gleichauf
[email-masked]

-----------------------------------------------------Part 
1----Process--------------------------------------------------------
The IPR process should start with the chartering of a new working group. It 
is designed to be iterative and to encourage rapid disclosure to help guide 
technical contributions by coupling them to IPR claim evolution.

DISCLOSURE

The staging of standards evolution should be matched by staging of IPR 
disclosure. If either is delayed, it should be expected that there will be 
delays in the other.

INTERNET DRAFT

At the start of the drafting of a new standard it is important that the WG 
director solicit from all participants a policy statement regarding any IPR 
they may own that are needed to implement the standard (termed "essential 
claims" in the W3C patent policy draft [W3C]). These should take one of the 
following forms.

1)      RF
2)      RF and reasonable and nondiscriminatory licensing for defensive 
protection
3)      RAND
4)      No license
5)      Other

A Web-based form should be provided for participants to enter their claims. 
The policies are ranked in order of preference, and WG directories should 
regularly poll participants on the status of their policy statements as 
they apply to the specific activities of the WG to encourage preferred and 
consistent behavior. Each such call should encourage participants to narrow 
the definition of the terms. This is especially important in the case of 
RAND where the term "reasonable" must be refined to focus on licensing 
terms. The mechanisms should also enable participants to update the status 
of any IPR claims in a manner consistent with changing status of pending 
IPR claims before issuing authorities along with the technological 
evolution of the standard. Although there is no enforcement associated with 
these categories other than good will and social memory, licensing policies 
other than the first two should trigger involvement by a committee under 
the direction of the IESG to urge the IPR owner to provide more guidance so 
that the WG can continue effectively. This is analogous to the PAG 
mechanism proposed by the W3C [W3C], but adapted to the administrative 
structure of the IETF.

PROPOSED STANDARD

A condition for WG advancement to Proposed Standard WG the licensing terms 
should be fully specified. These should evolve through regular 
solicitations of participants by the WG director toward one of the 
following (ranked in order of preference):

1)      RF
2)      RF with precise conditions for defensive protection. These 
generally should include definition of reciprocity expectations.
3)      Licensed, with a statement of fees. This should enable a precise 
interpretation by any implementor of the conditions necessary to deploy the 
standard and should be consistent or less restrictive than the terms under 
which the required two independent interoperable implementations were 
created. There should be provisions for Open Source implementations under 
royalty waivers.
4)      No license.

In the case of no license, presumably at this point the working group has 
either long given up or has found a work around in consultation with 
external legal counsel.

FULL STANDARD

A condition for advancement to Full Standard should simply only include the 
first two cases:

1)      RF
2)      RF with precise conditions for defensive protection. These 
generally should take the form of descriptions of reciprocity expectations.

Much of the Internet operates quite well on the basis of proposed 
standards, so these restrictions should not prevent the operation of the 
Internet, but should make clear the desirability of the goal of truly open 
implementations.

-----------------------------------------------------Part 
2----Background--------------------------------------------------

A standard set of processes for participants at the IETF to reveal their 
IPR to the community are needed. Current legal precedent (at least in the 
U.S.) obliges IPR owners who are participants in a standards activity to 
disclose or they loose their legal protection ([RAMBUS vFTC]). This 
obligation makes it especially important to encourage broad-based 
participation so that the IETF WG activity is useful and consistent with 
IPR owners' needs. Ideally a standards body should be focused on the 
broadest mechanisms for accelerating interoperable technologies, and all 
participants should subscribe to the same philosophy of making that happen 
through open mechanisms that let everyone participate without reservation. 
If these needs include making money from licensing of the IPR, rather than 
completely open acceleration of the technology, then the mechanisms for 
responsible disclosure should make it simple to do the right thing at the 
right time for the vast majority of participants who desire to behave 
honorably. Exceptions for less appropriate behavior (for example malicious 
attempts to derail standardization with false claims) need to be managed, 
but should not dominate the process. Nor should the burden on IPR owners be 
so onerous that they find it to their advantage to stay away, since then 
working groups may discover hidden patents too late in the process.

A standard can be drafted in ignorance of IPR, but once IPR claims are 
disclosed, the efforts of a working group may be deemed for naught. The 
different ways that intellectual property rights are reserved and protected 
by governments and collective authorities around the world mean that IPR 
claims can change or even be inconsistent while a working group is creating 
its drafts and proposals.

A working group is the wrong place to evaluate the legal validity of IPR 
claims. Claims are even difficult to evaluate for experienced patent 
counsel, and only really resolved through court proceedings. The technical 
details of an IPR claim against a standard are far less important than the 
licensing polices of the IPR owner.

It is also not realistic to assign the entire burden of immediate 
disclosure to IPR claimants because of several problems:

*  An IPR owner may not be engaged in a WG that overlaps their IPR, so they 
may simply be unaware of any potential for infringement.
* The IPR claimant many not always able to tell whether there is coverage 
when the standard in its early stages.
*  The claimant may not be able to tell what claims will issue if the IPR 
application is still pending and may not want to publicly disclose the 
contents of a pending application for competitive reasons (in jurisdictions 
where this is not required) in advance of notification that rights have 
been granted.

Therefore it is essential to the creation of standards that the working 
group be as well informed about IPR as soon as practical, but that all the 
parties have some guidelines in place to permit smooth evolution of a 
standard through thickets of IPR claims and alternative implementation 
strategies.

The IPR statements should be archived and available for public view. Other 
standards organizations have such form-based models (See References [ITU], 
[IEEE]). The participants' responses should be a matter of record as a 
social mechanism for encouraging good conduct (see Philosophy Statement 
message to follow). Consideration should be given to recording the 
evolution of reservation behavior beyond the duration of the appropriate 
RFC or WG to provide an institutional memory of participant conduct that 
can be referenced by subsequent efforts. The overhead associated with 
management of IPR can be simplified if the disclosure processes are similar 
across standards bodies (for some examples see 
[ITU-Patent-Process],[IEEE-Patent-Process], [W3C])

If this mechanism were adopted, existing working groups should probably be 
permitted to decide how and whether to phase in the process into their 
deliberations with some encouragement from the IESG, but no mandate.

REFERENCES

[RAMBUSvFTC] http://www.ftc.gov/opa/2002/06/rambus.htm

[ITU] http://www.itu.int/itudoc/itu-t/patents/policy/pd-form_ww9.doc or 
http://www.itu.int/itudoc/itu-t/patents/policy/pd-form.pdf

[ITU-Patent-Process] http://www.itu.int/ITU-T/dbase/patent/index.html

[IEEE] http://standards.ieee.org/board/pat/loa.pdf

[IEEE-Patent-Process] 
http://standards.ieee.org/guides/bylaws/sect6-7.html#6 and

http://standards.ieee.org/guides/opman/sect6.html#6.3 and

http://standards.ieee.org/guides/style/section2.html#1028

[W3C] http://www.w3.org/TR/2002/WD-patent-policy-20021114/

ACKNOWLEDGEMENTS

I have benefited from the wisdom and experience of many colleagues with 
broader experience than my own at the IETF and in dealing with IPR issues. 
The counsel of Robert Barr, Scott Brim and Rohan Mahy has been especially 
valuable.

_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: [email-masked] (Bruce Perens)
Date: Fri, 15 Nov 2002 17:03:44 -0800

Grants of rights really have to be irrevocable if anyone is to count
upon them. This doesn't rule out defensive provisions.

Note that once made, the grants can be enforced.  Organization A
could probably be held liable in civil court if organization B is damaged
by A's not making good upon its declarations.

> generally should include definition of reciprocity expectations.

The scope of use required in the grant is a parameter that the standards
organization can set. This should be discussed. It's important because a
restricted grant allows the patent holder to limit "IPR loss" to only the
minimum required to practice the standard, mitigating (IMO) their
primary argument against RF policies.

Of course the free software folks would much prefer an unrestricted
scope of use in the grant - but I have to note that we didn't get
one at W3C.

	Thanks

	Bruce

---

From: Robert Elz <[email-masked]>
Date: Sat, 16 Nov 2002 20:33:00 +1100

Date:        Fri, 15 Nov 2002 14:26:07 -0800
    From:        Paul Gleichauf <[email-masked]>
    Message-ID:  <[email-masked]>

  | A Web-based form should be provided for participants to enter their claims. 

Who is this participant you're expecting to have patent claims?
I know I have none at all in any field at all, and when I am at
IETF meetings, I am representing myself, and no-one else.  My employers
don't necessarily even know I'm attending when I do, sometimes they
have paid for me to come, other times, I pay personally.   But most of
my IETF participation is via mailing lists, and I can assure you that I
don't bother telling them what mailing lists I subscribe to, nor do I ask
them if they own any patents in any areas that may be related.

I guess there are some IETF people who do have their own patents they
could disclose (claim, though that seems to be the wrong word here)
but I don't think that is what you're actually wanting to get - you want
to try and find patents that belong their employers.

Even that isn't really adequate, what's needed for anything effective is
to find all the IP that might influence the decision on a technology to
choose, and that means IP owned by anyone, not necessarily people/organisations
that have anything at all to do with the IETF.

It seems that the idea is that everyone should be somehow encouraged to
participate in the IETF so that they would necessarily disclose their IP
(on the assumption that the view of US law is correct, and applies...)

But that's unrealistic - the IETF works with standards related to the Internet.
Organisations that aren't interested in that field won't attend, there's
no point.   But in order to create networking standards, we use all kinds of
technology - compression algorithms, encryption algorithms, ... that have been
created for uses not (initially anyway) necessarily having anything do do
with networking, and by organisations whose interest isn't related to networks.

How is their IP to be disclosed?

I think the current IETF method is the correct one - the only way to discover
whether IP constrains the development of technology is to actually get out
there and try it.   And yes, that means work, and sometimes it is going to
mean that some technology just can't be created in some areas, or by some
people who would like to - and when we come to advancing docs through the
standards process, we should take all of that into account.   But pretending
we can get a complete list of everything that applies, and somehow hope that
we can force it all to be royalty free is just a pipe dream.   It isn't worth
even spending time discussing.

kre

---

From: Brian E Carpenter <[email-masked]>
Date: Sat, 16 Nov 2002 16:43:10 +0100

Paul,

Nobody can reasonably be against process clarifications, especially to
prevent egregious failures to disclose IPR when appropriate. That is
what the WG was created for.

However, your idea that progress to Standard should only be
possible under RF conditions is not a process clarification.

Also, involving the IETF in statements of licensing conditions
or fees is a non-starter, for reasons that I gave earlier.

   Brian

---

From: Keith Moore <[email-masked]>
Date: Sat, 16 Nov 2002 11:26:58 -0500

My objections to this are similar to Robert's.  IETF participants are individuals,
and therefore we can only impose constraints on individuals.  Clearly it's
unethical for an individual to contribute to a standard that may require 
permission to use intellectual property in order to implement or practice
that standard if that individual is aware of that intellectual property 
and doesn't disclose it.   

In many cases it's not even clear whether the intellectual property actually
encumbers implementation or practice of the standard, because of vague
wording, prior art which should make it invalid, and the fickle nature
of courts.  How do you impose conditions on license agreements for
IPR that might not even apply?  Such rules just invite denial
of service attack.

The best that I think we could do is to have some process rules about
IPR licensing that come into play only when the consensus of a working
group is that such IPR is valid and relevant to exercise or practice
of that protocol. 

Even then, it's not clear how to deal with individual submissions,
and it's not clear how to handle documents that are already on the
standards track for which IPR is found later.

Keith