Subject: IPR for Standards Track only???

From: Steve Coya <[email-masked]>
Date: Thu, 5 Jun 2003 14:06:57 -0400 (Eastern Daylight Time)

Hi,

I don't wish to open a can of worms, but what the hell... it's Thursday
and we on the East Coast currently have a golden globe in the sky.

I have always had reservations about IPR statements and including text in
STANDARDS TRACK documents. What about Experimental Protocols (or, more
precisely, candidates for Experimental)?

Does not publication of an Experimental Protocol RFC carry an implicit
"let's test this out" message (i.e. implement and see what works and
what doesn't)?

I suggest this needs to be checked with REAL lawyers (as opposed to some
of us ;-), but I'm not sure the distinction between Proposed Standard and
Experimental Protocol would mean much to an IPR holder (or the courts for
that matter) if implementing the protocol required use of someones
Intellectual Property.

Just my opinion du jours - I could be wrong.

Steve

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From: "Lawrence E. Rosen" <[email-masked]>
Date: Thu, 5 Jun 2003 14:02:39 -0700

Steve Coya wrote:
> I suggest this needs to be checked with REAL lawyers (as 
> opposed to some of us ;-), but I'm not sure the distinction 
> between Proposed Standard and Experimental Protocol would 
> mean much to an IPR holder (or the courts for that matter) if 
> implementing the protocol required use of someones 
> Intellectual Property.

Legally speaking, it doesn't matter as far as patent infringement is
concerned.  Any *use* of patented technology can be an infringing use.

/Larry Rosen
General counsel, Open Source Initiative

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 06 Jun 2003 13:41:11 +0200

Scott Bradner wrote (on the template thread):

> > draft-ietf-ipr-technology-rights
> > already expands the scope of disclosures from RFC 2026, which I
> > rather expect will be an issue at Last Call
> 
> if *you* have issues please bring them up now, do not wait until IETF 
> last call

The point is that we are (however the template wording comes out)
indeed explicitly adding the contributions covered by the "note well" 
text to the RFC 2026 text. The "note well" was never last-called and
not everyone would agree it is only a clarification. In practice,
if you look at the disclosures on the web site, the vast majority
concern standards track documents. So there's no doubt in my mind
that this is de facto an expansion of scope and it only just squeaks
in under the WG charter.

I do have doubts about it. I know exactly what is involved in getting
corporate IPR lawyers to evaluate a patent against a text, and invoking
that process several times more frequently is a significant scaling
problem. So it's a nice theory, but in practice I don't think you
will see many formal disclosures except for standards track documents.

A carefully placed SHOULD might fix this.

   Brian
(speaking for myself only)
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From: Scott Bradner <[email-masked]>
Date: Fri, 6 Jun 2003 08:18:35 -0400 (EDT)

> A carefully placed SHOULD might fix this.

please send text

Scott

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 06 Jun 2003 15:43:19 +0200

> > A carefully placed SHOULD might fix this.

In 6.1.1, replace
 
>    Any Contributor who reasonably and personally knows of IPR meeting
>    the conditions of Section 6.6 which the Contributor believes Covers
>    or may ultimately Cover his or her Contribution, or which the
>    Contributor reasonably and personally knows his or her employer or
>    sponsor may assert against Implementing Technologies based on such
>    Contribution, must make a disclosure in accordance with this Section
>    6.

by

   Any Contributor who reasonably and personally knows of IPR meeting
   the conditions of Section 6.6 which the Contributor believes Covers
   or may ultimately Cover his or her Contribution, or which the
   Contributor reasonably and personally knows his or her employer or
   sponsor may assert against Implementing Technologies based on such
   Contribution, must make a disclosure in accordance with this Section
   6 when the Contribution becomes, or is incorporated in, a draft known
   to be intended for the standards track (including BCP).

   Any such Contributor should make such a disclosure for the Contribution
   concerned in any case, unless there are valid reasons in particular 
   circumstances for not doing so. 

      Brian

---

From: "todd glassey" <[email-masked]>
Date: Fri, 6 Jun 2003 06:41:31 -0700

No Scott a carefully placed SHOULD only serves to complicate the whole
problem some more -

And I have to apologize to you Scott for this commentary, you know I respect
you tremendously. But the issues we are fighting here are about placing band
aids onto a broken limb in hopes it will help and its a waste of time.

And since you  are essentially the primary architect of the Standards
Process for the Submittal and Operations Processes, I post the following
response, because I believe that while this system may have been OK for
onsee-twosee kinda things, that as part of anything formal standards
process - it does not work. Now what concerns me is why the legal counsel
would not point out that all this RFC2026 Boilerplate "arm waving" ONLY
works if the person submitting the IP's actually is who they say they are,
and more importantly actually has the rights they claim to and these are
totally and intentionally ignored by the current process creating a
tremendous liability. This is an excerpt from a private email I sent to
someone last night.

It is critically important that this appear in the records of the
organization to put a stake in the ground - so without further adieu -

---

...but I also want to observe that ALL of the current issues stem from the
architecting of the IETF as essentially an Academic Standards Process.
Seriously - look at it. Its pretty aptly described that way. Its a consensus
process with no fixed description or criteria for what a consensus is, or
any accounting processes so that you can audit or demonstrate the veracity
of any decision after the fact, and then the process of "acknowledging the
consensus" is actually another level of totally arbitrary votes.  It also
resist any change to that, kicking and screaming.

This "academic - we trust everybody" mindset continues further with the
process itself. The submissions process for instance has no real release and
is essentially anonymous in nature since there is no authentication. This
actually is a very powerful observation since it leads one to the ides in
the next paragraph.

I would also amplify regarding the issues of the submittal and liability
coverage to give the IETF an arms-length that all standards processes must
have to remain reputable. And to these I would add that the current
submissions process has one deadly flaw and that is that the RFC2026 boiler
plate for addressing liability ONLY works if the person submitting the
material is who they claim they are and actually do have the rights they
claim to.

---

From: Scott Bradner <[email-masked]>
Date: Fri, 6 Jun 2003 09:57:08 -0400 (EDT)

I disagree strongly with the change in concept that this proposes

I do not think that it is good for the discussion to wait until some
ildefined point to make a disclosure, and that is not the running
code that I have been using for many years - people should make 
disclosures when they make a contribution or when they see another
contribution that contains what they think is their IPR

----

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 06 Jun 2003 15:43:19 +0200

In 6.1.1, replace

by

      Brian

---

From: Keith Moore <[email-masked]>
Date: Fri, 6 Jun 2003 10:23:18 -0400

On Fri, 06 Jun 2003 15:43:19 +0200

>    to be intended for the standards track (including BCP).

change to

>    to be intended for publication in an RFC or other stable document series.

otherwise people will push for Experimental or Informational RFCs just to have
the appearance of IETF's impramatur on the spec, and use that as a way to
get people to adopt encumbered technology.

---

From: Keith Moore <[email-masked]>
Date: Fri, 6 Jun 2003 10:24:04 -0400

On Fri, 6 Jun 2003 09:57:08 -0400 (EDT)

> contribution that contains what they think is their IPR

fundamentally agree.

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 06 Jun 2003 16:29:52 +0200

Scott, that really isn't my perception of the running code. Note,
I'm sticking to what I think is this WG's goal, i.e. documenting
the running code. 

Can you point me to existing disclosures that are *not* about standards
track drafts, or drafts that were clearly aimed at standards track?

   Brian

Scott Bradner wrote:
> >From [email-masked]  Fri Jun  6 09:53:09 2003
> Date: Fri, 06 Jun 2003 15:43:19 +0200
> From: Brian E Carpenter <[email-masked]>
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> Scott Bradner wrote:
> >

---

From: "todd glassey" <[email-masked]>
Date: Fri, 6 Jun 2003 07:37:11 -0700

Why not just create a commercial standard - unless this is actually only the
home of academic standards? and if so then how can it possibly represent the
Internet or its operators since none of this today is paid for by any
University that I am aware of.

Todd

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 06 Jun 2003 17:20:27 +0200

> > contribution that contains what they think is their IPR

Since you use the word "should", we appear to agree. It's "must"
prior to entry into the standards track that seems impractical
to me.

   Brian

---

From: John C Klensin <[email-masked]>
Date: Fri, 06 Jun 2003 11:44:29 -0400

Brian,

I tend to agree with Scott that letting people delay until there 
is a draft ready to be posted, or later if someone can plausibly 
argue that it came as a surprise when the material was sucked 
into the standards track -- and I read your suggested paragraph 
that way-- is a bad idea.   It opens us up to all sorts of nasty 
gaming.  For example, someone could introduce something that was 
known to be encumbered into a mailing list discussion with 
"maybe this idea would help in thinking about the problem", let 
others pick up the ball, and then bring the submarine to the 
surface only when others have carried the idea far enough that 
it is the _only_ proposal in front of the WG.  Before that, it 
could be plausibly argued that one "didn't know it was 
intended...".

At the same time, your observation about the difficulties of 
bringing in the lawyers is obviously relevant.  Would it be 
sensible to find a middle ground that takes us back to the 
_intent_ of the policy which, to me is "disclose as soon as you 
know, to the extent possible"?  That would imply crafting text 
that makes some disclosure obligatory as soon as one speaks up 
and has any knowledge at all -- a "I think there may be company 
IPR associated with this" statement -- but requires more 
comprehensive disclosure as a concept moves closer to a probable 
standards-track document or RFC publication in some other form.

      john

--On Friday, 06 June, 2003 09:57 -0400 Scott Bradner 
<[email-masked]> wrote:

> I do not think that it is good for the discussion to wait
> until some ildefined point to make a disclosure, and that is
> not the running code that I have been using for many years -
> people should make  disclosures when they make a contribution
> or when they see another contribution that contains what they
> think is their IPR
>
> ----
>...
>    Any Contributor who reasonably and personally knows of IPR
> meeting    the conditions of Section 6.6 which the Contributor
> believes Covers    or may ultimately Cover his or her
> Contribution, or which the    Contributor reasonably and
> personally knows his or her employer or    sponsor may assert
> against Implementing Technologies based on such
> Contribution, must make a disclosure in accordance with this
> Section    6 when the Contribution becomes, or is incorporated
> in, a draft known    to be intended for the standards track
> (including BCP).
>
>    Any such Contributor should make such a disclosure for the
> Contribution    concerned in any case, unless there are valid
> reasons in particular     circumstances for not doing so.

---

From: Keith Moore <[email-masked]>
Date: Fri, 6 Jun 2003 11:50:05 -0400

On Fri, 06 Jun 2003 17:20:27 +0200
Brian E Carpenter <[email-masked]> wrote:

> > > I do not think that it is good for the discussion to wait until
> > > some ildefined point to make a disclosure, and that is not the
> > > running code that I have been using for many years - people should
> > > make disclosures when they make a contribution or when they see
> > > another contribution that contains what they think is their IPR
> > 
> > fundamentally agree.
> 

what's impractical about making a disclosure as soon as you know that
a disclosure needs to be made?
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From: Scott Bradner <[email-masked]>
Date: Fri, 6 Jun 2003 14:39:13 -0400 (EDT)

Brian:
You had two points on this topic
1/ tell people to disclose when something becomes standards track
2/ existing disclosures are not on non-standards track documents

1/ when something becomes "standards track" is not well defined but even if
it were you are asking IPR holders to remember to check back in the future
to see if something is now standards track - this seems very problematical
indeed - this would happen at a random point in the future, not an easy
thing for an IPR holder to keep track of

2/ if you look at the existing disclosures many of them are about
individual submissions - I suppose that some of these individual
submissions had been accepted by WGs to become standards track documents
and the filenames had not yet changed but I doubt that is the case with
most of them.  (A quick scan of just the names of the IPR claims on the web
page gets 65 examples - more than twice as many disclosures as there about
working group documents (not all of which might have been standards track)) 

So, in my mind, your proposal would make the disclosure process less
reliable and to change the running code - not good attributes 

Scott

---

From: Pekka Savola <[email-masked]>
Date: Fri, 6 Jun 2003 23:19:40 +0300 (EEST)

> track drafts, or drafts that were clearly aimed at standards track?

There are plenty of them.

http://www.ietf.org/ietf/IPR/CHRISTENSEN-MAGMA-SNOOP.txt
http://www.ietf.org/ietf/IPR/CISCO-WU.txt
http://www.ietf.org/ietf/IPR/Alcatel-rtg-dos.txt
http://www.ietf.org/ietf/IPR/cisco-claise-netflow.txt
http://www.ietf.org/ietf/IPR/extreme-ipr-draft-shah-extreme-eaps.txt

and many, many others.

filling disclosures has been an accepted practice for non-stds track
documents.  There just hasn't been a strong sense of "must" to it, I
think.

-- 
Pekka Savola                 "You each name yourselves king, yet the
Netcore Oy                    kingdom bleeds."
Systems. Networks. Security. -- George R.R. Martin: A Clash of Kings

---

From: Brian E Carpenter <[email-masked]>
Date: Sun, 08 Jun 2003 15:27:12 +0200

OK, thanks, but these are all for drafts and that is a controllable
problem (i.e. deciding to make a disclosure is part of the process
of deciding to ship a draft). Do you have any examples for mailing
list or face to face statements? That is where there is real pain.

   Brian

---

From: Brian E Carpenter <[email-masked]>
Date: Sun, 08 Jun 2003 15:20:31 +0200

John,

As with Harald's suggestion, I'm worried by this too. A partial
disclosure (e.g. without a patent number and a statement of
RAND conditions) will freeze discussion of the idea, perhaps
unnecessarily.

I am sympathetic to Scott's desire to get disclosures on the table,
but there really isn't a perfect solution. The current text really 
substantially increases the burden on IPR holders compared to 
2026-in-practice. And the end result of that is to stifle discussion, 
one way or another.

Maybe we need a specific WG process to indicate that item X is
now subject to the "must disclose" requirement.

   Brian

---

From: Scott Bradner <[email-masked]>
Date: Sun, 8 Jun 2003 09:36:09 -0400 (EDT)

> but there really isn't a perfect solution

this may not be a "perfect solution" but its the best I could
come up with yesterday (I've submitted a revision of -technology
including this

Scott

------
6.5  What licensing information must be detailed in a disclosure?
   Since IPR disclosures will be used by IETF working groups during
   their evaluation of alternative technical solutions, an IPR
   disclosure should include information about licensing of the IPR in
   case Implementing Technologies require a license.  Specifically, it
   should indicate whether, upon approval by the IESG for publication as
   RFCs of the relevant IETF specification(s), all persons will be able
   to obtain the right to implement, use, distribute and exercise other
   rights with respect to an Implementing Technology a) under a royalty-
   free and otherwise reasonable and non-discriminatory license, or b)
   under a license that contains reasonable and non-discriminatory terms
   and conditions, including a reasonable royalty or other payment, or
   c) without the need to obtain a license from the IPR holder.

   The inclusion of licensing information in IPR disclosures is not
   mandatory but it is encouraged so that the working groups will have
   as much information as they can during their deliberations.  If the
   inclusion of licensing information in an IPR disclosure would
   significantly delay its submission it is quite reasonable to submit a
   disclosure without licensing information and then submit a new
   disclosure when the licensing information becomes available.
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From: Brian E Carpenter <[email-masked]>
Date: Tue, 10 Jun 2003 14:00:45 +0200

Scott,

I think this is fine. We also say somewhere that the Secretariat
must make efforts to get the licensing information at the
appropriate stage of the process. I think that covers this aspect
(*what* to include in a disclosure), but there is still the issue 
of *when* to disclose for items that are not Internet-Drafts.
See my previous note.

   Brian

-- 
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Brian E Carpenter 
Distinguished Engineer, Internet Standards & Technology, IBM 
On assignment at the IBM Zurich Laboratory, Switzerland
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