Subject: RE: IETF RAND policy

From: [email-masked]
Date: Fri, 21 Feb 2003 15:09:25 -0500

> IETF should give implementers all the relevant information it has in
> order for those companies or individuals to decide whether to adopt a
> standard.  Relevant information, even if couched in "we didn't verify
> this but here's what we heard" language, will be useful.  

IETF does - the information is contained in Intellectual Property
Rights Notices.  IETF's collection of these can be found at:
http://www.ietf.org/ipr.html , and it gets added to on a regular basis.

[... snip ...]

> As for your email about willful infringement, consider the following
> scenario.  Suppose an employee of Cisco (just an example!) heads up a WG
> and also leads his company's implementation of the specification.  He
> learns, through his IETF activities, that a patent is being asserted
> but, following current IETF practice, he avoids the issue and does not
> seek opinion of counsel.  Is his company's infringement willful?

In the absence of a precise description of "learns", the answer is
the usual "it depends".  Let's assume that the IETF process has been
followed, so an IPR notice has been filed, and that the IPR is of
sufficient content/specificity to be taken seriously.  Further, let's
assume that as a good WG chair, the employee informed his WG of the
existence of the IPR notice.  In such a situation, the employee cannot
plausibly claim ignorance of the IPR, and hence continuing to implement
something he believes may infringe that IPR without seeking the advice
of counsel is poor judgment at the very least, and definitely poses
legal risks.

> Suppose he does, within his company, seek an attorney's opinion and is
> told that Cisco won't implement the specification because of the risk of
> infringement.  What are his obligations, if any, to his colleagues in
> IETF and to other implementers?  If you were his attorney, what would
> you advise?

I suspect the attorney would tell the employee in no uncertain terms
that the attorney's opinion is both company-confidential and covered
by attorney-client privilege.  I suspect that would make it off-limits
for any moral or IETF-imposed obligation, but I suspect Larry knows
what is allowed by these areas of the legal system better than I do.

Thanks,
--David
----------------------------------------------------
David L. Black, Senior Technologist
EMC Corporation, 176 South St., Hopkinton, MA  01748
+1 (508) 293-7953             FAX: +1 (508) 293-7786
[email-masked]        Mobile: +1 (978) 394-7754
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---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Fri, 21 Feb 2003 12:53:53 -0800

David Black wrote:
> I suspect the attorney would tell the employee in no 
> uncertain terms that the attorney's opinion is both 
> company-confidential and covered by attorney-client 
> privilege.  I suspect that would make it off-limits for any 
> moral or IETF-imposed obligation, but I suspect Larry knows 

W3C, in its patent policy, requires the following:

Disclosure is required when an Advisory Committee representative (AC
rep), or any other party in a Member organization who received the
disclosure request, has actual knowledge of likely Essential Claims with
respect to a specification. Anyone who received a disclosure request in
a Member organization and who has such knowledge must inform that AC
rep. Where disclosure is required, the AC rep will do so.

Exemption for those making a W3C RF licensing commitment: The disclosure
obligation as to a particular claim is satisfied if the holder of the
claim has made a commitment to license that claim under W3C RF licensing
requirements, or has agreed to license any possibly essential claims it
may hold with respect to a Recommendation under W3C RF licensing
requirements.