Subject: Feedback/comments on Brim "Guidelines" draft (and overlap with Bradner "technology-rights" draft)

From: "Valerie See" <[email-masked]>
Date: Thu, 27 Feb 2003 11:28:42 -0800

Scott and Scott (Brim and Bradner), 
  
Thanks again to both of you for all the hard work on the drafts.... and
apologies for the length of this mail. It seemed best for me to keep
this
together rather than break it into individual items in this case but it
makes
it very lengthy.

In looking through Scott Brim's draft on "Guidelines for Working Groups"

<draft-ietf-ipr-wg-guidelines-01.txt>, it seems as though several of the
issues 
that are raised here are addressed in Scott Bradner's "technology
rights" draft 
on the actual clarifications to Section 10. For instance, both documents
contain 
a discussion of the various licensing options (such as RAND, no license 
required, etc.) and of various IPR disclosure issues. More of a concern,

however, is that the documents are not always consistent in these
discussions. 
I list below some of the issues that seemed to be duplicative and/or
inconsistent.  
Before these documents are put to bed (or put out for last call), I
would recommend 
that any overlapping discussion either be removed from Scott Brim's
draft or made 
consistent with Scott Bradner's draft, so that we do not create any new
ambiguities.

One general comment before my more specific ones - I think for any case 
studies that get used, we should enlist the ADs and WG chairs who were
involved 
to help write the text. (Apologies if you've already been doing this and
I just didn't 
know it). 

Here are some specific comments:

A. SSH (Secure Shell) - I'm very uncomfortable as a technical person in 
assuming that we're going to be able to think through issues of "claims"

fully (despite the lengthy and disputatious discussion of this very
point
on the list).  Also, the language suggesting that the WG is evaluating
the 
IPR claims "for their possible validity" seems squarely at odds with
statements
made elsewhere that the WG, and the IETF more generally, are not
expected, or 
even supposed to, engage in this type of activity. At best, it seems as
though
people may be consulting their legal advisors (if they have them) and
weighing 
the advice that they get - but I'm not sure of the overall teaching
value of this 
case at the end of the day, and would like to suggest that it be removed
in this form.  
  
B. IDN (Internationalized Domain Name) - I think that Scott's (Bradner) 
"technology-rights" draft actually addresses the issues brought up here
- 
even more so if a disclosure template or boilerplate form were to be 
adopted, and so I think this case study should be deleted.

C. Section 5.7 Third Party Disclosure - this section seems out of place
in this document
and is also somewhat duplicative of, and otherwise inconsistent with,
content again 
contained in the "technology-rights" draft. My reasoning here is that it
is a 
discussion primarily directed at _individuals_ who want to make
third-party disclosures, 
not at _WGs_ (which are the subject of the draft) on how they should
deal with such 
third-party disclosures. The main substantive inconsistency between the
Brim and Bradner 
drafts on this issue is as follows:  The Brim draft states (in section
5.7) that "If they 
are sure the discovered IPR claim applies, and the IPR claimant does not
submit a first 
party disclosure itself, then they have a _responsibility_ to submit a
third party 
disclosure." (emphasis added) "Technology-rights" states in Section 4
(B) that 
"The IETF _encourages_ all interested parties to bring to its attention,
at the earliest
possible time, the existence of any intellectual property rights
pertaining to Internet 
Standards." (emphasis added) This latter statement matches with my
understanding of the 
practices as set out within Section 10... that you have an obligation to
disclose _your_ 
(or your employer's, or sponsor's, again not intending to stir up old
ground...) 
IPR within the limits of your reasonable and personal knowledge, but
that you are only 
"encouraged" to disclose third party IPR. The reasons for this are well
discussed here in this 
draft - since third party disclosure can be disruptive (and when
misused, constituted a DoS attack 
on the WG), and since there may be other business realities attached to
such situations 
(i.e. a negotiation, or some such), it cannot realistically be
"required" for participants to 
disclose 3rd party IPR.  

Moreover, even focusing just on the _procedural_ guidelines as to how to
communicate 
third-party disclosures, the two drafts are inconsistent.  The Bradner
draft (in sections 4(B) 
and 6.3) says to send any information about disclosures via e-mail to
the IESG Secretariat, 
whereas the Brim draft (in section 5.7) creates new procedures for
notifying the WG chairs, 
contemplating notice to other chairs, and other WGs, etc.  Not only are
these new procedures 
not found in and inconsistent with what is in the Bradner draft; they
also appear to go beyond 
clarifying current IETF processes, and thus seem to be out of scope for
either of these documents.  
For these reasons, I would suggest that section 5.7 be deleted from the
Brim draft.  
Alternatively, you may want to retain just the last two paragraphs of
the section, since they 
are more in the nature of guidance to the WGs and thus are more in line
with the focus of the draft, 
without being inconsistent with the Bradner draft. In all events, the
two documents need to be 
consistent with each other and with current IETF policy (as others have
also mentioned). 

D. Three other inconsistencies I'll mention between the two drafts: 

1) The list of possible licensing situations in Section 5.6 of the Brim
draft is at 
the very least different from (and, in some senses, may be deemed
inconsistent with) 
those set out in the Bradner draft in section 6.5.  I don't really see a
need to have 
both documents address this set of possibilities (they seem more suited
to the Bradner 
draft), but even if they remain in both, they should be the same list
and description. 
Please note that in my comments on the Bradner technology rights draft,
I propose a 
list of typical licensing options, as well as a boilerplate disclosure /
licensing 
declaration form containing these options.  Understanding that the list
in the Bradner 
draft is representative of previous licensing disclosures, I'd still
like to suggest that 
these licensing options be used as the representative list in the
Bradner document 
(in section 6.5), and possibly also in the Brim document (in section
5.6).

2) Section 5.4 of the Brim draft states (in section 5.4) that the "IETF
does not (cannot) 
expect IPR claimants to tell a working group specifically how they think
a particular patent 
applies."  By contrast, the Bradner draft states (in section 6.4) that
the "disclosure 
should also list the specific IETF documents or activity affected and
what sections of any 
documents are affected."  I would be in favor of the Bradner statement,
but only for cases 
where the patent holder states its intention _not_ to license, not in
cases where the patent 
holder says it _will_ license.  Again, at the very least, these
statements should be made 
consistent in the drafts.

3) The Brim draft (in section 5.4) states that "All the IETF can expect
regarding a pending 
patent is disclosure that it exists and possibly some statement about
licensing terms."  
By contrast, as noted, the Bradner draft suggests (in section 6.4) that
even in the case of 
_unpublished_ pending patent applications the patent holder must
disclose "what sections 
of any documents are affected."  As noted, my personal view is that with
published pending 
patent applications, the application number should be disclosed, but
with _unpublished_ 
applications, only the _existence_ of the application should be
disclosed, unless the patent 
holder refuses to license, in which case one might reasonably require
him or her to further 
disclose the sections of any documents that are affected by the asserted
patent claims in 
the unpublished application.

E) Section 2 states that, other than the rule that individuals who
cannot disclose IPR of 
which they are personally and reasonably aware not being able to
participate in activities 
related to a technology, "The IETF does not have detailed rules for each
situation."  
Is this right?  We are saying quite clearly that all IETF participants
"must disclose" IPR 
and according to specific guidelines. I am concerned that if we suggest
the "IETF does not 
have detailed rules", then we create an ambiguity as to whether IETF has
a duty to disclose, 
which is not the case. 

F) Since this document seems intended to focus on guidelines for WGs on
patents, I think 
it makes more sense to use "patent claims" throughout rather than "IPR
claims" or "IPR rights."  
Otherwise, we are just creating more ambiguity about what _else_ we may
be talking about 
when the focus really is on patent claims.

G) In section 5.6 in the Brim draft and elsewhere in the Brim and
Bradner drafts, there 
continues to be discussion of the "employers" of IETF participants
"knowing" certain things, 
or being bound by certain aspects of the IETF IPR policy.  One thing
that seems to need 
to be more clearly addressed in the context of these documents is the
fact that the IETF 
is an organization made up of individuals who are required to represent
only themselves 
and their best thinking about what is best for the Internet, and yet, on
the other hand, 
the "employers" and "organizations" these individuals "represent" will
be held bound to the 
policy.  I believe this is a critical principle/distinction that needs
to be adequately 
explained in order to clarify the IETF IPR policy.  It probably makes
the most sense 
in the Bradner draft.

thanks, Valerie See 
_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: Scott W Brim <[email-masked]>
Date: Thu, 27 Feb 2003 18:22:21 -0500

On Thu, Feb 27, 2003 11:28:42AM -0800, Valerie See allegedly wrote:
> A. SSH (Secure Shell) - I'm very uncomfortable as a technical person
> in assuming that we're going to be able to think through issues of
> "claims" fully (despite the lengthy and disputatious discussion of
> this very point on the list).  

Agreed.  I believe we pointed out that (1) you should use your legal
resources if you have them, and (2) licensing terms are more important
than validity determination.

> Also, the language suggesting that the WG is evaluating
> the 
> even supposed to, engage in this type of activity. 

I carefully said working group *participants* everywhere it was
appropriate.  In this case: "Working group participants can evaluate IPR
claims not only for their possible validity, but also for the risk of
misjudging that validity."

> At best, it seems as though people may be consulting their legal
> advisors (if they have them) and weighing the advice that they get -
> but I'm not sure of the overall teaching value of this case at the end
> of the day, and would like to suggest that it be removed in this form.  

I'm willing, but I would like to leave it in this version (there will be
another version for last call, I'm sure).  I don't have another like it.

> B. IDN (Internationalized Domain Name) - I think that Scott's
> (Bradner) "technology-rights" draft actually addresses the issues
> brought up here - even more so if a disclosure template or boilerplate
> form were to be adopted, and so I think this case study should be
> deleted.

This is used mainly as a case study in gathering information on IPR.
The initial claims were vague, but it turned out to be quite possible to
get more information, with persistence.  Also, it points out some ways
in which open discussion can be valuable.  I don't see another example
like it.

> C. Section 5.7 Third Party Disclosure - this section seems out of
> place in this document and is also somewhat duplicative of, and
> otherwise inconsistent with, content again contained in the
> "technology-rights" draft. My reasoning here is that it is a
> third-party disclosures, not at _WGs_ (which are the subject of the
> draft) on how they should deal with such third-party disclosures. The
> main substantive inconsistency between the Brim and Bradner drafts on
> this issue is as follows:  The Brim draft states (in section 5.7) that
> "If they are sure the discovered IPR claim applies, and the IPR
> claimant does not submit a first party disclosure itself, then they
> have a _responsibility_ to submit a third party disclosure." (emphasis
> added) "Technology-rights" states in Section 4 (B) that "The IETF
> _encourages_ all interested parties to bring to its attention, at the
> earliest possible time, the existence of any intellectual property
> rights pertaining to Internet Standards." (emphasis added) This latter
> statement matches with my understanding of the practices as set out
> within Section 10... that you have an obligation to disclose _your_
> ground...) IPR within the limits of your reasonable and personal
> knowledge, but that you are only "encouraged" to disclose third party
> IPR. The reasons for this are well discussed here in this draft -
> since third party disclosure can be disruptive (and when misused,
> constituted a DoS attack on the WG), and since there may be other
> business realities attached to such situations (i.e. a negotiation, or
> some such), it cannot realistically be "required" for participants to
> disclose 3rd party IPR.  

I see the point about individuals inside and outside the working group
context.  The reason it's in WG Guidelines is because it's fuzzier than
"policies and procedures".  The only policy/procedure in the whole thing
is one sentence at the beginning.  Also, the text about individuals is
about how an individual should behave in the context of working groups
(one or more) -- as is almost all of Section 5.  

After writing the above I'm now definitely inclined to keep it in the
Guidelines draft.  Arguments accepted.

SOB's airplane has probably landed by now, but I'm sure he's jet-lagged.
Let's see what he has to say.

Regarding "responsibility", that wasn't supposed to imply that
disclosure was required.  It was meant more as a social more, a
guideline, like "we have a responsibility to our parents".  Can you
think of a better word?

> Moreover, even focusing just on the _procedural_ guidelines as to how
> to communicate third-party disclosures, the two drafts are
> inconsistent.  The Bradner draft (in sections 4(B) and 6.3) says to
> send any information about disclosures via e-mail to the IESG
> Secretariat, whereas the Brim draft (in section 5.7) creates new
> procedures for notifying the WG chairs, contemplating notice to other
> chairs, and other WGs, etc.  Not only are these new procedures not
> found in and inconsistent with what is in the Bradner draft; they also
> appear to go beyond clarifying current IETF processes, and thus seem
> to be out of scope for either of these documents.  

This isn't about procedures.  A formal disclosure goes to the
secretariat.  This is guidance on what one could/should do before
getting to that point, and a bit of guidance around that point.  

> For these reasons, I would suggest that section 5.7 be deleted from
> the Brim draft.  Alternatively, you may want to retain just the last
> two paragraphs of the section, since they are more in the nature of
> guidance to the WGs and thus are more in line with the focus of the
> draft, without being inconsistent with the Bradner draft. In all
> events, the two documents need to be consistent with each other and
> with current IETF policy (as others have also mentioned). 

> 1) The list of possible licensing situations in Section 5.6 of the
> Brim draft is at the very least different from (and, in some senses,
> may be deemed inconsistent with) those set out in the Bradner draft in
> section 6.5.  I don't really see a need to have both documents address
> this set of possibilities (they seem more suited to the Bradner
> and description.  Please note that in my comments on the Bradner
> technology rights draft, I propose a list of typical licensing
> options, as well as a boilerplate disclosure / licensing declaration
> form containing these options.  Understanding that the list in the
> Bradner draft is representative of previous licensing disclosures, I'd
> still like to suggest that these licensing options be used as the
> representative list in the Bradner document (in section 6.5), and
> possibly also in the Brim document (in section 5.6).

I've revised the Guidelines draft to use a slightly modified Russ Nelson
list, which I believe is even a superset of yours:

   o  Technology which has been publicly disclosed for more than one
      year, with no known IPR claims.

   o  Technology which has been publicly disclosed, with no known IPR
      claims.

   o  IPR disclosed and licensed with no restrictions.

   o  IPR licensed with no material restrictions, e.g. no trademark
      license required.

   o  IPR licensed for a particular field of use but no other material
      restrictions, e.g. licensed solely for implementations complying
      with a standard.

   o  IPR licensed under openly-specified reasonable and
      non-discriminatory restrictions.  This may include payment of a
      royalty.

   o  IPR which is otherwise licensable.

   o  IPR which is not licensable, i.e. which is only available as an
      implementation.

   o  IPR which is not available under any conditions.

I think this is much more detail than we need in the Technology Rights
draft, which is supposed to be more about policies and less about
information for individuals.

> 2) Section 5.4 of the Brim draft states (in section 5.4) that the
> "IETF does not (cannot) expect IPR claimants to tell a working group
> specifically how they think a particular patent applies."  By
> contrast, the Bradner draft states (in section 6.4) that the
> "disclosure should also list the specific IETF documents or activity
> affected and what sections of any documents are affected."  I would be
> in favor of the Bradner statement, but only for cases where the patent
> holder states its intention _not_ to license, not in cases where the
> patent holder says it _will_ license.  Again, at the very least, these
> statements should be made consistent in the drafts.

Yes, we're somewhat out of synch.  Even so, when I said "specifically
how they think it applies", I had in mind more than just identifying
sections.  I expect it would be rare for a disclosure to list particular
claims from particular patents.  Also the Technology Rights draft just
says "should", and I do not expect all disclosures to list specific
sections.  I will revise this sentence to be less dramatic, but the
point remains that an IPR disclosure will rarely tell working group
participants all they would like to know.  I'll try to fix it.

> 3) The Brim draft (in section 5.4) states that "All the IETF can
> expect regarding a pending patent is disclosure that it exists and
> possibly some statement about licensing terms."  By contrast, as
> noted, the Bradner draft suggests (in section 6.4) that even in the
> case of _unpublished_ pending patent applications the patent holder
> must disclose "what sections of any documents are affected."  As
> noted, my personal view is that with published pending patent
> applications, the application number should be disclosed, but with
> _unpublished_ applications, only the _existence_ of the application
> should be disclosed, unless the patent holder refuses to license, in
> which case one might reasonably require him or her to further disclose
> the sections of any documents that are affected by the asserted patent
> claims in the unpublished application.

Yup.  And in both cases the sections need to be identified.  I'll fix
it.

> cannot disclose IPR of which they are personally and reasonably aware
> not being able to participate in activities related to a technology,
> "The IETF does not have detailed rules for each situation."  Is this
> right?  We are saying quite clearly that all IETF participants "must
> disclose" IPR and according to specific guidelines. I am concerned
> that if we suggest the "IETF does not have detailed rules", then we
> create an ambiguity as to whether IETF has a duty to disclose, which
> is not the case. 

I was thinking of rules with respect to Working Group activities.  I'll
add a clause.

> F) Since this document seems intended to focus on guidelines for WGs
> on patents, I think it makes more sense to use "patent claims"
> throughout rather than "IPR claims" or "IPR rights."  Otherwise, we
> are just creating more ambiguity about what _else_ we may be talking
> about when the focus really is on patent claims.

There is at least one example of a non-patent IPR claim.

> Bradner drafts, there continues to be discussion of the "employers" of
> IETF participants "knowing" certain things, or being bound by certain
> aspects of the IETF IPR policy.  One thing that seems to need to be
> more clearly addressed in the context of these documents is the fact
> that the IETF is an organization made up of individuals who are
> required to represent only themselves and their best thinking about
> what is best for the Internet, and yet, on the other hand, the
> "employers" and "organizations" these individuals "represent" will be
> held bound to the policy.  I believe this is a critical
> principle/distinction that needs to be adequately explained in order
> to clarify the IETF IPR policy.  It probably makes the most sense in
> the Bradner draft.

I believe that was fixed in mine, by Keith Moore's comments.  SOB may
want to add some text.

> thanks, Valerie See 

Thank you.

..swb