Subject: RE: IPR at IETF 54

From: "Christian Huitema" <[email-masked]>
Date: Thu, 30 May 2002 09:22:34 -0700

> From: Scott Brim [mailto:[email-masked]]
> 
> On Thu, May 30, 2002 10:59:27AM -0400, RJ Atkinson wrote:
> > 	My druthers would be to have an IETF policy explicitly saying
> > 	that the first choice is to use unencumbered technology if it
> > 	can be made to work, second choice is encumbered but
> > 	royalty-free technology, and last choice is "fair and reasonable
> > 	licence terms" (or whatever the equivalent correct legal wording
> > 	might be for that last).
> 
> and if one solution is 120% better technically than another, but has a
> RAND license associated with it?  What if it's 170% better?

The de-facto policy in these cases has been to choose the
less-encumbered technology as the standard (i.e. MUST implement), and
the more-encumbered technology an option (MAY implement). For example,
when RSA was still encumbered and Diffie-Hellman was not, the IETF
settled on making Diffie-Hellman mandatory, RSA optional. Maybe this
should be documented.

-- Christian Huitema

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From: "John Stracke" <[email-masked]>
Date: Thu, 30 May 2002 12:50:42 -0400

>Thus, this mechanism offers almost no remedy or protection.

I didn't say it was the optimal policy.  :-) Someone implied that the IETF 
didn't have an IPR policy, and I pointed to it.

/========================================================\
|John Stracke                    |Principal Engineer     |
[email-masked]   |Incentive Systems, Inc.|
|http://www.incentivesystems.com |My opinions are my own.|
|========================================================|
|This space intentionally not left blank.                |
\========================================================/

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From: "John Stracke" <[email-masked]>
Date: Fri, 31 May 2002 09:31:25 -0400

>> Right.  Standards exist so that we can get interoperability; expensive
>> licenses limit interoperability.
>
>No, expensive licenses place an upper bound on the number of
>interoperable implementations.

I believe it comes to the same thing.  Interop is not actually the end 
goal; it is a tool to prevent vendor lock-in by maximizing people's choice 
of implementations.  If a standard is subject to an expensive license, 
that raises the bar on who can implement it, which reduces choice.

/===========================================================\
|John Stracke                    |Principal Engineer        |
[email-masked]   |Incentive Systems, Inc.   |
|http://www.incentivesystems.com |My opinions are my own.   |
|===========================================================|
|There are footprints on the moon. No feet, just footprints.|
\===========================================================/

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From: Vernon Schryver <[email-masked]>
Date: Fri, 31 May 2002 10:36:20 -0600 (MDT)

> From: [email-masked]

> ...
> The problem is that you can publish the same document, and then some
> sleazeball competitor patents it, because the patent office does such
> a poor job of researching "prior art".

That seems to be based on the false notion that the patent
office checks even its own documents for prior art.

>If http://www.bustpatents.com didn't have a reason to exist, I'd agree with you

The reasons I see for that and similar publications do not involve the
assumption that government bureaucrats and everyone else involved in the
"IP protection" business don't see that their own interests lie in what
can be charitably summarized as erring on the side of accepting instead
of rejecting patent applications.

Look for the notion of "blocking patents" in the 19th Century in such
as in development of firearms.  Unless you think everyone in the 19th
Century was a superstitious and ignorant idiot or that all real science
and technology appear after 1950, look at the many obviously silly
patents from the first century of the extortion racket.

Vernon Schryver    [email-masked]

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From: "Christian Huitema" <[email-masked]>
Date: Fri, 31 May 2002 10:51:30 -0700

>   | And the flip side - we've moved an amazingly SMALL number of documents
>   | to Full Standard, and only when we *think* we *fully* understand
> things.
> 
> That's the problem.   Or it is with the IPR issues.   It is determining
> whether
> we can make that final step (widespread deployment is what is required,
> expecting full understanding of almost anything is naïve) that actally
> decides whether or not the IPR rights holder is being reasonable or not.

Ten years ago, we were mostly concerned with the "silent patent holder" problem. It is reasonably easy for a WG to make its own decision when the existence of the patents and the licensing conditions are disclosed up front, before the WG agrees on a solution. But the real problem occurs when the patent holder "ambushes the standard". Products get developed and fielded, and then the vendors or the users of these products get hit by an infringement lawsuit. 

The current process was designed to minimize this risk, on the belief that if an issue actually existed, it would surface during the early phase of testing, i.e. before the standard would move from "proposed" to "draft". The rationale was that there would not be much usage at that stage, and that if push came to shove the WG could re-design the standard so as to not require licensing of a hard-to-get patent. As KRE points out, the whole mechanism falls apart when vendors field products based on a proposed standard, not to mention an internet draft. 

There are other issues. The first one is the imprecision of the disclosure requirements. The current process does not exactly say who is required to disclose the existence of intellectual property. According to some interpretations, a working group chair whose organization holds patents affecting a draft discussed in the working group is not required to disclose these patents, if he or she does not contributes or otherwise participate in the discussion of this specific draft. 

A second issue is the interaction between the standardization process and non-disclosure agreements. For example, an IETF participant may know that his or her former employer has a patent claim on a technology considered for standardization; in fact, I know case where the participant is in fact one of the authors of the patent. Yet, the agreement signed when leaving an employer typically prevents disclosure of such information. In another example, a vendor may have to sign an NDA before learning that its product infringes on some other organization's patent. This vendor is then legally prevented to signal the existence of the patent claim to the IETF.

I would contend that, if we have one urgent problem to solve, it is to find a way to ensure speedy disclosure of intellectual property issues that affect a standard.

-- Christian Huitema

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From: Vernon Schryver <[email-masked]>
Date: Fri, 31 May 2002 15:51:51 -0600 (MDT)

> From: Pekka Savola <[email-masked]>

> ...
> .. If it takes a lawyer to write (or understand) licensing terms, they're
> probably too complex ..

Something like "the programmer who is his own IP lawyer has a fool for
a client" applies.
In other words, if you need to sign a license, then it takes a lawyer
to understand its terms.

10 or 15 years ago people said that free RFCs versus expensive ITU
(ISO) standards were a major advantage of the DDN Protocol Suite.
Today, the cost of necessary legal advice dwarfs those old
documentation fees by orders of magnitude.

This is all merely sweeping against the tide.  I predict all of this
noise will come to nothing but affirming the IETF's IP status quo.
The IETF has always had too many people who without the faintest clue
or interest in implementing anything, except when they mean "unpack
a box and plug it in."  That problem has continued to worsen over the
years and has been joined by another problem.  Many of the ever fewer
IETF implementors (or their employers) now hope to get rich (or avoid
bankruptcy) by selling IP licenses.