Subject: question for the IETF counsel and any other lawyers here...

From: "todd glassey" <[email-masked]>
Date: Tue, 17 Jun 2003 11:19:47 -0700

The one question we need to ask to know how to constrain the IP issues is
simply "if a disclosure on one of the IETF's WG's public mailing lists is
made, does this constitute public disclosure such that an actual IP Owners
rights regarding patents and other IP protection mechanism are put into
motion or triggered".

I expect Jorge among others to answer this formally here.

Todd

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---

From: "Bob Wyman" <[email-masked]>
Date: Wed, 18 Jun 2003 11:04:35 -0400

Todd Glassey wrote:
>"if a disclosure on one of the IETF's WG's public mailing lists is
made, does this constitute public disclosure ... regarding patents "
	You don't need to be a lawyer to answer this, at least in
part... Under current US patent law, disclosure of a method in a mailing
list is considered to be a "printed publication" for the purposes of
defining prior art as well as priority dates for inventions.

See: http://www.uspto.gov/web/offices/pac/mpep/documents/2100_2128.htm
Where it is said:
"An electronic publication, including an on-line database or Internet
publication, is considered to be a "printed publication" within the
meaning of 35 U.S.C. 102(a) and (b) provided the publication was
accessible to persons concerned with the art to which the document
relates. See In re Wyer, 655 F.2d 221, 227, 210 USPQ 790, 795 (CCPA
1981) ("Accordingly, whether information is printed, handwritten, or on
microfilm or a magnetic disc or tape, etc., the one who wishes to
characterize the information, in whatever form it may be, as a 'printed
publication' * * * should produce sufficient proof of its dissemination
or that it has otherwise been available and accessible to persons
concerned with the art to which the document relates and thus most
likely to avail themselves of its contents.' " (citations omitted).).
See also Amazon.com v. Barnesandnoble.com, 73 F. Supp. 2d 1228, 53
USPQ2d 1115, 1119 (W.D. Wash. 1999) (Pages from a website were relied on
by defendants as an anticipatory reference (to no avail), however status
of the reference as prior art was not challenged.); In re Epstein, 32
F.3d 1559, 31 USPQ2d 1817 (Fed. Cir. 1994) (Database printouts of
abstracts which were not themselves prior art publications were properly
relied as providing evidence that the software products referenced
therein were "first installed" or "released" more than one year prior to
applicant's filing date.).

Date of Availability 
Prior art disclosures on the Internet or on an on-line database are
considered to be publicly available as of the date the item was publicly
posted. If the publication does not include a publication date (or
retrieval date), it cannot be relied upon as prior art under 35 U.S.C.
102(a) or (b), although it may be relied upon to provide evidence
regarding the state of the art. 

Etc...

		bob wyman

-----Original Message-----
From: [email-masked] [mailto:[email-masked]] On Behalf Of
todd glassey
Sent: Tuesday, June 17, 2003 2:20 PM
To: [email-masked]
Subject: question for the IETF counsel and any other lawyers here...

The one question we need to ask to know how to constrain the IP issues
is simply "if a disclosure on one of the IETF's WG's public mailing
lists is made, does this constitute public disclosure such that an
actual IP Owners rights regarding patents and other IP protection
mechanism are put into motion or triggered".

Todd

---

From: "todd glassey" <[email-masked]>
Date: Wed, 18 Jun 2003 19:33:18 -0700

Bob - I apologize, I clearly know that sending a mailing list's worth of
notification certainly does constitute formal public disclosure, the problem
here with this system is that there is no way to tell if the person
submitting something actually has the right to...

Todd

----- Original Message ----- 
From: "Bob Wyman" <[email-masked]>
To: "'todd glassey'" <[email-masked]>; <[email-masked]>
Sent: Wednesday, June 18, 2003 8:04 AM
Subject: RE: question for the IETF counsel and any other lawyers here...

Date of Availability

Etc...

bob wyman

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

Todd

---

From: "Bob Wyman" <[email-masked]>
Date: Thu, 19 Jun 2003 12:03:19 -0400

Todd Glassey wrote:
> the problem here with this system is that there is no
> way to tell if the person submitting something actually 
> has the right to...
	There are many things that the current system doesn't do.
However, it would be inappropriate for it to "do" or address these other
things. Just as the current system doesn't determine whether or not a
contributor is speaking the truth it doesn't have any mechanism for
determining the actual identity or current employer of a contributor.
Nor any attributes of that contributor such as age, sex, hair color, or
experience in the area of expertise relevant to the contribution. The
IETF procedures don't check for the existance of non-disclosures,
anti-competition agreements, etc.... None of this is relevant and it is
neither reasonable nor required that the IETF procedures address these
issues.

		bob wyman

---

From: "todd glassey" <[email-masked]>
Date: Thu, 19 Jun 2003 09:15:01 -0700

So then you are saying that "to maintain its processes status quo" the IETF
will continue to publish materials it has no possible way of claiming it has
anything like a reliable or durable release in the publishing of. And
further that it seems that you just don't care whether people in the
industry are damaged by the IETF's actions because the IETF is acting in the
best interest of the Human Race", or at least pretty clearly in the dominant
players in the standards process.

My further comments below

Todd

----- Original Message ----- 
From: "Bob Wyman" <[email-masked]>
To: "'todd glassey'" <[email-masked]>; <[email-masked]>
Sent: Thursday, June 19, 2003 9:03 AM
Subject: RE: question for the IETF counsel and any other lawyers here...

things.

TSG] - how so?

Just as the current system doesn't determine whether or not a
contributor is speaking the truth it doesn't have any mechanism for
determining the actual identity or current employer of a contributor.

TSG ] -That's the point...

Nor any attributes of that contributor such as age, sex, hair color, or
experience in the area of expertise relevant to the contribution.

TSG ] -Which the asking of which would constitute an invasion of privacy
under any number of legal precedents.

The

TSG] - Until the first time the IETF is used as a tool to invalidate
someone's IP rights and then I assure you that the damages settlement
against the IETF and the individuals that posted that material and possibly
the people working to set these rediculous rules into place will surely be
an awakening...

bob wyman

---

From: "Bob Wyman" <[email-masked]>
Date: Thu, 19 Jun 2003 12:55:56 -0400

Todd Glassey wrote:
> Until the first time the IETF is used as a tool to 
> invalidate someone's IP rights and then I assure you
> that the damages settlement against the IETF and the 
> individuals that posted that material and possibly the 
> people working to set these rediculous rules into place 
> will surely be an awakening...

	If someone publishes "secrets" in a contribution to the IETF in
violation of some contract such as a non-disclosure, then there might be
a cause of action against that contributor, but there wouldn't be any
cause of action against the IETF. Also, the only case where this would
"invalidate" someone's rights is if it was a premature disclosure of
something that someone wanted to patent and they didn't notice the
premature publication for a year after it was made. Even if the
disclosure prevented filing of a patent, it wouldn't create a cause of
action against the IETF.
	Only under copyright or patent law might the IETF have problems
with dealing with data whose IPR was improperly described. But, since
the IETF only writes documents, it has no reason to fear patent law
(although implementors of infringing IETF specifications might have such
a problem). The only remaining issue would be copyright violations. i.e.
someone incorporates a chunk of copyrighted text into a contribution.
This, however, would not result in "invalidation" of anyone's rights --
only an infringement of those rights. A procedure that provides a
mechanism for a copyright holder to assert their rights and request
withdrawal of the infringing contribution would be about as much as the
IETF could ever hope to do here.
	Magazines, TV shows, billboards, any mechanism for publishing
data all have the same issue with improperly disclosed information. If
every publisher was forced to do detailed forensic investigations into
every bit of data disclosed through them, noone would ever be able to
publish anything.

		bob wyman

---

From: "todd glassey" <[email-masked]>
Date: Thu, 19 Jun 2003 10:31:23 -0700

Bob

----- Original Message ----- 
From: "Bob Wyman" <[email-masked]>
To: "'todd glassey'" <[email-masked]>; <[email-masked]>
Sent: Thursday, June 19, 2003 9:55 AM
Subject: RE: question for the IETF counsel and any other lawyers here...

Todd Glassey wrote:
> people working to set these ridiculous rules into place

If someone publishes "secrets" in a contribution to the IETF in
violation of some contract such as a non-disclosure, then there might be
a cause of action against that contributor, but there wouldn't be any
cause of action against the IETF.

[TSG] - I am sorry but it is my belief that you are just plain wrong here,
and that the IETF is the primary source of liability because it refuses to
acknowledge what virtually all other respected standards practices and the
associated organs that support them know. That being that IP management is
critical to being able to be open and that its control and rule enforcement
is the most important thing in maintaining the practice above reproach.

[TSG] - And because of this, IMHO the IETF's intentional head-in-the-sand
policy and the ease of suing anyone-for-anything here in the United States
pretty much guarantees that what you are saying are just plain wrong.
Especially since most all other  standards organs that are recognized as
"world leaders", the issues of IP and its release or disclosure through
their infrastructure address this liability which further sets the
expectation that since all the others do it, that the IETF should know about
these issues in the processing of its initiatives as well, which IMHO
creates a real liability in the IETF model.

Also, the only case where this would
"invalidate" someone's rights is if it was a premature disclosure of
something that someone wanted to patent and they didn't notice the
premature publication for a year after it was made.

[TSG] - So have you tried to patent anything in Japan recently that you
talked about publicly prior to the filing?.

Even if the

[TSG] - really - how do you figure? - the IETF knows about the issues of IP
management and refuses to put similar release as per other tested processes
because they are "repugnant" to those free spirits that exist as the
ephemeral constituency? is that what you are saying? - Hmmm- sounds like a
4/20 hallucination to me.

Only under copyright or patent law might the IETF have problems
with dealing with data whose IPR was improperly described. But, since
the IETF only writes documents, it has no reason to fear patent law
(although implementers of infringing IETF specifications might have such
a problem).

[TSG] - OK - first time we agree in in this response of yours, but lets be
particular here - the IETF is only the publishing bureau right?

OK so then it is one that has no release authorization beyond the checking
of the boilerplate in the email submitted manuscript...

So Bob, answer me this if you would, how many formal publishing bureau's do
you know of that will accept a manuscript without a wet signed release? I
know of only one to date and this is it. No other Intellectual Property
Development Agency, Think Tank, or foundation that I know of publishes
anything they don't have formal release for and I gotta ask you Bob - Why do
you suppose that is so?

The only remaining issue would be copyright violations. i.e.
someone incorporates a chunk of copyrighted text into a contribution.

[TSG] - lets take it a step farther and talk about how the IETF needs a
cease and desist policy.

[TSG] - Well I would suggest that this is part of a larger IP issue of how
to stop all publication or public discussion (as it pertains to vetting the
IP's) on any list.

Magazines, TV shows, billboards, any mechanism for publishing
data all have the same issue with improperly disclosed information. If
every publisher was forced to do detailed forensic investigations into
every bit of data disclosed through them, no one would ever be able to
publish anything.

[TSG] - So then we should look at IETF standards as episodes from the
National Enquirer right? - is that what you are saying here? because that's
what I am hearing...

Bob - your responses were amusing but wrong. If you don't believe me, you
might want to ask your corporate lawyer before you go any farther down this
rathole.

Todd