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

From: [email-masked]
Date: Thu, 27 Feb 2003 18:12:50 -0500

> 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.

These look like word choice issues.  Both "claim" and "validity"
have well-defined meanings in patent law, and determinations
of those (esp. the rats nest known as "claim construction") is best
left to legal experts.  This is compounded by the SSH example actually
being about a trademark rather than a patent, so it would be a good
idea to limit the word "claim" to patents and use something like
"request" or "assertion" here.

For "validity", I think "applicability" is probably a safer and more
correct term to substitute, as that concerns whether a patent applies
to technology in the WG, as opposed to "validity" which can go well
afield for reasons like pursuit of "prior art" - a WG is better off
staying focused on what it is doing.  I believe engineers are capable
of making reasonable applicability assessments (with the caveat that
the outcome might be "maybe"), but that "validity" issues are best left
to legal experts and those who get involved (voluntarily or otherwise)
with them.

> 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.

Perhaps some reorientation would help, but having this session here tells
a third party discloser what "reasonable behavior" is and hence can provide
some guidance to a WG that is dealing with "unreasonable behavior" in
this area.

> 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)

[... snip ...]

Much as I might wish otherwise, "responsibility" is too strong, and
should be replaced with some form of "encourage".

> 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.

I think calling these "procedures" overdoes it.  This is advice to
participants.  The Bradner draft has the minimum procedural obligations,
and the additional stuff in the Brim draft (e.g., "should exchange mail
with the WG chair(s) first) is advice that is a good idea, but is not
mandatory (e.g., "should" was used).

> For these reasons, I would suggest that section 5.7 be deleted from the
> Brim draft.

I strongly disagree, as this area has come up in practice.  The second,
third and fourth paragraphs might be improved by some rephrasing to
indicate that this is advice to IETF participants, with a note that
a WG may wish to consider whether the participant who made the 3rd party
disclosure followed the advice as a factor in evaluating what (if
anything) to do as a consequence of the disclosure.

Thanks,
--David
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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: Scott W Brim <[email-masked]>
Date: Thu, 27 Feb 2003 18:29:01 -0500

> should be replaced with some form of "encourage".

OK, I detect consensus.  Changed.

> anything) to do as a consequence of the disclosure.

Send text.  Flowers and fruit also welcome.  Keep deadlines and all the
stuff people are going to have to deal with at the last minute in mind.

..swb