Subject: RE: IETF RAND policy

From: [email-masked]
Date: Thu, 20 Feb 2003 15:20:12 -0500

> On one occasion, the IETF actually got a legal opinion on a patent claim 
> that seemed quite remote to an I_D under development.  After looking at
the 
> patent and the I-D under discussion, the lawyers responded with what we 
> should have expected.  ~The patent does not appear to apply to the 
> work.  However, they may claim applicability or even sue implementors 
> anyway.~

Unfortunately, that's the reality of patent litigation.  The behavior
of the patent owner and lawyers can be more important than how a court
will ultimately rule on a patent, as responding to a patent lawsuit
is expensive and time-consuming.

> It is based on this and similar experience and feedback that the 
> IETF made the determination that we were much better off never making an 
> explicit determination as a group as to the applicability of patent claims

> to our work.  Individual engineers can and will make their own 
> judgements.  Corporations must make their own judgements.

The old rule about "never say never" may apply here.  In practice,
when clear technical grounds exist to do so, enough engineers can
reach technical conclusions about the applicability of a patent to
allow a WG to form a conclusion, and there are examples of WGs forming
such conclusions in the Case Studies section of the WG Guidelines draft.

The problems arise when the engineers that make up a WG can't reach a
conclusion based on clear technical grounds - i.e., the result of
considering applicability of the patent is a definite "maybe" (been
there, and did not enjoy the experience).  In that case, the IETF as
a whole is unlikely to be able to improve on the judgment of the
community of technical experts in the WG, and hence, as Joel says:

> The IETF as a community has found that making such judgements as
> a community is an impractical idea.

Returning to Larry's original comment:

> >I agree with that statement -- in so far as it goes.  But even engineers
> >are capable of reasonably determining whether, in their opinion, a
> >patent reads on a proposed standard.

I think the actual situation is that the results of the determination
may well be "maybe" (if anyone wants a serious intricate example, I
can provide one), the WG process is more likely to arrive at "maybe"
in the presence of diverging opinions.  From a "maybe" conclusion,
analysis turns to other factors - for example, if the patent owner has
the resources, ability, track record, and/or intent to mount serious
patent litigation, the best course of action may be to assume that
the patent applies, but it would be wrong to treat every "maybe" as
a "yes" for reasons that have already been discussed here.

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: [email-masked]
Date: Mon, 24 Feb 2003 15:46:46 -0500

> As for the other 1.4%: Nobody can completely solve the problem of
> third-party patents suddenly appearing before or after the standard is
> promulgated.  In those cases, however, the participants at the IETF
> table are the best qualified engineers in the whole world to evaluate
> the relevance and importance of the third-party patents.  Their opinions
> are material -- definitely NOT "useless."  Their employers would expect
> their opinions and I think the entire community could benefit from their
> opinions.

I would qualify the talents of IETF participants with "within the limits
of their expertise".  For example, a storage engineer is not qualified
to evaluate a security patent on a cryptographic protocol.  Unfortunately,
patent-obstructed areas of security can and do turn up in other areas
of the IETF.  OTOH, the IETF participants are usually well qualified to
design around (away from) a troublesome patent.

> But I've never suggested anyone breach the attorney-client privilege,
> or disclose anything that they are contractually prevented from
disclosing.

Thanks - that wasn't clear from the W3C policy excerpts.  FWIW, the
inability to make 3rd-party disclosures due to NDAs occurs in practice.

--David