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

From: "Contreras, Jorge" <[email-masked]>
Date: Wed, 18 Jun 2003 12:34:54 -0400

I agree.  Posting to a public mailing list should 
be considered public disclosure for most purposes.

-----Original Message-----
From: Bob Wyman [mailto:[email-masked]]
Sent: Wednesday, June 18, 2003 11:05 AM
To: 'todd glassey'; [email-masked]
Subject: RE: question for the IETF counsel and any other lawyers here...

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".

I expect Jorge among others to answer this formally here.

Todd

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---

From: "todd glassey" <[email-masked]>
Date: Wed, 18 Jun 2003 19:58:59 -0700

Counsel,

SNIP

----- Original Message ----- 
From: "Contreras, Jorge" <[email-masked]>
To: <[email-masked]>; "todd glassey" <[email-masked]>;
<[email-masked]>
Sent: Wednesday, June 18, 2003 9:34 AM
Subject: RE: question for the IETF counsel and any other lawyers here...

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

SNIP

(1)    Then it makes sense that the IETF must, no MUST have a formal release
for everything it publishes. Right?

(2)    And so I have to ask then if you are also satisfied that an anonymous
EMail based submittal with  the authentication and identity assurance
problems that common email has. And what this means to the IETF's document
submission process and the reliability of any testimony generated through it
especially since we know that Courts will not accept unauthenticated email
as proof of anything these days.

My feeling is that because of this failing, no matter what's in the
boilerplate the IETF would be inextricably bound to the disclosure as
partners in the fraudulent publication of proprietary intellectual
properties. Its fraud because of the Copyright Statement in every documents
too. The IETF assures the people reading it that this material, published
under its banner, is available as per the statements regarding copyright,
And any wrongful submission clearly cannot guarantee this.

This is not an issue with the "IETF Culture" its an issues of making it
possible for the IETF to exist within a legal framework that makes sense.

Todd

---

From: "Bob Wyman" <[email-masked]>
Date: Thu, 19 Jun 2003 11:57:11 -0400

Todd Glassey wrote:
> making it possible for the IETF to exist 
> within a legal framework that makes sense.
	A "legal framework that makes sense" would not be one such as
you propose. It is not the job nor the responsibility of the IETF to
monitor and police whether or not those who contribute to it have the
rights to do so. That issue is, and must be, left to be worked between
the specific individuals who make contributions and those whose work
they might have misappropriated. I believe that the IETF goes far beyond
merely discharging any duty of diligence it might rationally be assigned
by clearly requiring that contributors state any IPR that is related to
their contributions. It would not make sense to demand any more nor can
the law require such silliness. Imagine the IETF administering lie
detector tests to contributors: "Are you SURE you're allowed to do
this?"... Or, requiring that all contributions be accompanied by
notarized statements of an individual's employers, or if that individual
is currently unemployed, then a certification of unemployment and a
waiver from their previous employer... Silliness...
	Anyway, existing procedures provide the mechanism for IPR
holders to "correct" any mistatements by their employees, contractors,
etc. If they feel that their rights have been misappropriated, then they
can simply file an IPR disclosure. 

> fraudulent publication of proprietary 
> intellectual properties.
	Give it a break. Fraud requires intent. If the IETF publishes
something that was contributed to it by someone violating a contract
with a third party, yet the IETF acts in good faith, the most you could
do is enforce copyright law, but it wouldn't be "fraud."
	If one wishes to pursue the goal of exquisite attention being
paid to the possiblity of copyright infringements, then it might make
sense to describe a short procedure by which someone who claims
copyright on a contribution can request that a contribution be
withdrawn. But, then again, we've already got that since an IPR
disclosure which discloses copyright on improperly submitted
contributions would be effective.

On another subject:....
	It seems that some of the objections recently made in this list
are so far out on the edge that one must wonder about the true
intentions of those that are making these objections. Is their goal
really to help move the process forward? Or, is obstruction more the
order of the day?

		bob wyman