Subject: meaning of "should" in technology-rights

From: Scott W Brim <[email-masked]>
Date: Fri, 6 Jun 2003 11:50:08 -0400

I've been told that there is concern about the use of "should" in
technology-rights -- that if it says something "should" be done, even
though that's not "must", a court might say a patent is unenforceable if
the "should" isn't followed.

I suggest an explicit definition of "should" for this particular
document.  We can base it on what's in rfc 2119, with rephrasing for the
lawyers.

In 2119 it says

  3. SHOULD   This word, or the adjective "RECOMMENDED", mean that there
  may exist valid reasons in particular circumstances to ignore a
  particular item, but the full implications must be understood and
  carefully weighed before choosing a different course.

I propose, for technology-rights:

  q. "Should": This word, or the adjective "recommended", means that
  there may exist valid reasons in particular circumstances to ignore a
  particular item, but the implications must be carefully weighed before
  choosing a different course.  Choosing a different course does not
  mean the chooser is non-compliant with the policy.

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From: Keith Moore <[email-masked]>
Date: Fri, 6 Jun 2003 11:59:03 -0400

On Fri, 6 Jun 2003 11:50:08 -0400
Scott W Brim <[email-masked]> wrote:

> though that's not "must", a court might say a patent is unenforceable
> if the "should" isn't followed.

I think it's a reasonable concern, but I doubt we can solve the problem
by defining "should" similarly to the way we define it in technical
specifications.  Maybe by defining it as "if at all possible"
or "must make a reasonable effort" or some such.  But it might simply be
that the kind of flexibility we find useful for SHOULD in technical
specs would not serve use well in matters of IPR policy.
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From: Harald Tveit Alvestrand <[email-masked]>
Date: Sat, 07 Jun 2003 09:30:29 +0200

> specs would not serve use well in matters of IPR policy.

given that the IPR area is an area where people might have even more reason 
to use our own rigidity against us if they can than in dealing with 
technical standards, I think the flexibility is exactly what we need.

An important thing in IPR is probably making sure that for each important 
"should", it must be clear who's in charge of making the determination to 
vary from standard procedure.

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From: Brian E Carpenter <[email-masked]>
Date: Sun, 08 Jun 2003 14:09:23 +0200

> specs would not serve use well in matters of IPR policy.

Ask our lawyer?

   Brian

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From: Scott W Brim <[email-masked]>
Date: Sun, 8 Jun 2003 10:16:17 -0400

> > specs would not serve use well in matters of IPR policy.

This should provoke him ...

MUST: failure to do the prescribed action is a violation of IETF policy.

SHOULD: the prescribed action is recommended and is desirable, but
failure to do so is not a violation of IETF policy.
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From: Scott Bradner <[email-masked]>
Date: Sun, 8 Jun 2003 13:18:57 -0400 (EDT)

> Ask our lawyer?

he is on vacation for another week

Scott

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From: Keith Moore <[email-masked]>
Date: Mon, 9 Jun 2003 12:26:18 -0400

> > I think it's a reasonable concern, but I doubt we can solve the
> > problem by defining "should" similarly to the way we define it in
> > technical specifications.  Maybe by defining it as "if at all
> > possible" or "must make a reasonable effort" or some such.  But it
> > might simply be that the kind of flexibility we find useful for
> > SHOULD in technical specs would not serve use well in matters of IPR
> > policy.
> 
> given that the IPR area is an area where people might have even more
> reason to use our own rigidity against us if they can than in dealing
> with technical standards, I think the flexibility is exactly what we
> need.

I guess my interpretation of Rambus was that flexibility could also be
used against us.
 
> An important thing in IPR is probably making sure that for each
> important "should", it must be clear who's in charge of making the
> determination to vary from standard procedure.

That's different.  It's one thing if the reader can interpret the spec
however he wants, quite another thing if there's a well-defined party
and procedure by which the determination is made.
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