Subject: Part 1 - comments/feedback on Bradner "technology-rights-01" draft

From: "Valerie See" <[email-masked]>
Date: Thu, 27 Feb 2003 11:28:53 -0800

Scott (and group),

Apologies again for the length of these comments as well - I've split
these
into three parts, but there's still a lot here.

General Concern:

At the outset, I want to raise one overarching concern I have about 
our IPR policy clarification effort (a concern which Joe Zabarth also 
recently touched on, as well as Jorge Conteras):  I think there is 
potential for confusion on how the final clarification documents will 
relate to RFC 2026. My assumption is (and has been) that Section 10 of 
RFC 2026 will still be the definitive IPR policy and Scott's patent and 
copyright documents will merely supplement it.  However, if this is the 
case, what is the effect where we have the same provision from RFC 2026 
largely duplicated in one or both of the clarifying documents, yet
certain 
clarifications are implemented in one or both of these documents that
are 
not also reflected in RFC 2026?  This could happen, for example, with 
the first paragraph of the "All Contributions" provision in section
10.3.1
of RFC 2026.  This paragraph is also included in section 2.2.1 of the 
technology rights draft and in section 2.3 of the IPR submissions draft.

It is possible that, if clarifications are made to either or both of the

sections in the clarification documents, but not in RFC 2026, we will
wind 
up with two or three versions of the same provision in different IETF
IPR 
policy documents (and possibly four, to the extent Scott Brim's document

touches on the issue), and readers may not understand the linkages
between 
these documents. In fact, section 2.2.1 already has certain differences
in 
key phraseology as compared to section 10.3.1 of RFC 2026, yet there is
no 
explanation of _why_ certain words were changed to clarify the language.

Such differences between the documents, without accompanying
explanations 
of the reasons for the differences, could create significant confusion 
(particularly since many of the key provisions of RFC 2026 are
replicated 
in the clarification documents and many have already, or soon will be, 
clarified based on comments to this list).

One possible way of addressing this issue might be the following:
Rather than 
duplicate certain provisions from RFC 2026 in the two clarification
documents 
and then make unexplained clarifying changes to language in the
clarification 
documents but not to RFC 2026, change the format/style of the two
clarification 
documents somewhat so that they 1) quote the specific relevant provision
of RFC 
2026 that is the source of the current confusion (e.g., the disclosure
provisions 
in section 6 and 10.4(B)), and 2) then explain in the clarification
document what 
this provision actually means in the workings of IETF.  For example,
back to the 
Contributions section from RFC 2026 above, one might say something like
the following
(note that I ask this as a question later in my more specific comments):

"Section 10.3.1. of RFC 2026 states that 'By submission of a
contribution, each 
person actually submitting the contribution is deemed to agree to the
following 
terms and conditions on his own behalf, on behalf of the organization
(if any) 
he represents and on behalf of the owners of any propriety rights in the

contribution.'  The phrase 'on behalf of the owners of any proprietary
rights in 
the contribution' has caused some concern and confusion because
potential 
contributors believe they are being required to agree to terms on behalf
of 
third parties and third-party IPR that they do not even know about.
This is not the 
intent of this language.  Rather, the intent of section 10.3.1 is to
require assurances by the 
submitter of the contribution focused solely on the submitter itself
(and its represented 
organization, if any). There is also an assumption that the other named
co-contributors, 
even if not actual submitters of the contribution, provide these
assurances by their 
agreement to be named as contributors.""
   
Sorry to throw this rather substantial issue out on the table at this
point, 
but I really think it is worth focusing on before we wind up with three
or four 
IPR documents that all say slightly different things in various places,
and all of 
our good efforts wind up creating more confusion than when we started. 

Specific Comments

1: Section 2.2.1, All Contributions - First paragraph. As noted above,
as written, I
think this could be interpreted as some sort of assurance on the behalf
of third parties who were not directly part of the contribution (i.e.
where the contributors had no idea that third party IPR existed). Scott,
while 
I realize the language here is taken from Section 10.3.1 of RFC 2026,
was this 
the intent of this language? Or do we need to clarify that the scope of
the
assurances here was actually intended to be limited to those on behalf
of the
co-contributors/co-authors? If it's the latter, I think this issue could
be clarified 
either by pursuing the approach I suggest in my "General Concern"
comment above, or 
(if the consensus is not to pursue this approach) by changing the first
sentence of 
section 2.2.1 to something like the following: "By submission of a
contribution, 
each person actually submitting the contribution, and each named
co-contributor, 
is deemed to agree to the following terms and conditions, on his/her own
behalf, 
and on behalf of the organizations the contributor represents (if any)
when submitting 
the contribution." I believe this clarification (which is similar to Joe
Zebarth's earlier 
suggestion on this point) avoids the possibility of making it sound like
the actual 
submitter of the contribution is agreeing to anything for third parties
and/or 
third-party patent claims. As such, the clarification is also consistent
with the point 
I make below (which has been echoed by others on the list) that there is
no obligation 
in the IETF to disclose IPR of third parties. 

(Note that the remainder of my comments below are made assuming the
current format/style 
of the document remains the same. If, however, the consensus of the
group is to pursue 
the approach I suggest in my "General Concern" comment above, the
following proposed 
changes (and other proposed changes discussed on this list) may have to
be tweaked 
somewhat to fit them into the document's new format/style.)

2. Section 1, Introduction - item c. This text as written does
not differentiate between IPR held by a participant (or his/her
employer),
and third party IPR. I think we do want to distinguish between the
"obligation" to disclose one's own IPR (or IPR belonging to one's
employer or sponsor) within
reasonable and personal knowledge, and the "encouragement" (note, not
"requirement" or "obligation") to disclose third party IPR. That said, I
like Scott's formulation here - "existence of any patent claim that they
believe is necessary to implement the technology required"  I would only

suggest a minor edit in that, changing "is necessary" to "would be
necessary". 
To better note the difference between your own (or your
employer/sponsor's) IPR and 
third party IPR, one thought was this might further change to "must
disclose the existence 
of any patent claim of the participant, the participant's employer or
others
represented by the participant (if any) that they believe would be
necessary 
to implement the technology required.". 

3. Section 6.1.3 - A few minor suggested tweaks and corrections: 

(a) should the reference to 3(B) here be to 4(B) instead? 

(b) A general note for the doc - make "3rd parties" or "third parties"
uniform throughout. 

(c) In the first sentence, a minor clarification suggestion - changing
the phrase 
"3rd parties that have information about possible IPR claims related to
IETF are 
invited to notify the IETF" - to "3rd parties that have information
about IPR claims 
of others that may cover IETF contributions are encouraged to notify the
IETF". 

(d) If the suggestion in c) is accepted, and together with some
suggestions for clarifications 
in section 6.6, I think the last sentence in this section should be
deleted as it will 
have become redundant with the previous sentence. 

4. Section 6.1.2 - I am not sure it is clear that this section only
obliges a 
participant to disclose its _own_ IPR that is contained in another
party's contribution.  
In order to make this point clearer, I would suggest changing the
language as follows: 
"An IETF participant must disclose any of his or her own IPR (or the IPR
of his or her 
represented organization, if any) that is included in the contribution
of another party." 

5. Section 6.2.1 Timing of Disclosure - Although it seems to me that
"within the
bounds of reasonable and personal knowledge" is implicit in this
discussion, for clarity, might it not be prudent to make this explicit
by sticking a clause in to that effect at the end of the first sentence?
Also, given 
the fact of individual (versus organizational) participation in the
IETF, I'd like to 
suggest that the reference to "organization" in the first sentence be
stricken here, 
as its presence makes it sound as if the org, rather than the
individual, is the one 
participating and making the disclosure, contrary to IETF policy.

thanks, Val See
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---

From: Scott Bradner <[email-masked]>
Date: Fri, 28 Feb 2003 08:21:37 -0500 (EST)

Re: Valerie See's worry about document overlap

fwiw - I think that my 2 new IDs are meant to update 2026 

note that the IETF has not been operating *strictly* under 2026 for 
quite a while - for example the IETF has had the "Note Well" messasge
for the last few years

note that the IDs say
   The rules and procedures set out in this document are not
   intended to substantially modify or alter IETF's or ISOC's current
   policy toward IPR in the context of the IETF standards process. 

and note that the WG charter says that we are to:
   "Document existing IPR practice in the IETF"

since the "existing IPR practice in the IETF" is not *just* 2026 the
new IDs do go beyond 2026 to include things like the Note Well note
and the currently practiced IPR policies

one thing that I do not recall seeing on this (sometimes too busy) list is
the fact that, for security-related technology, a discussion at an IETF
plenary meeting endorced the idea that all mandarory-to-implement security 
technologies (such as encryption technologies) should be RF or IPR-free

this was a number of years ago and thus are, to me, part of the existing
IPR practice that should be documented in teh new IDs

it has been my assumption that, when we are done, "my" two documents
will replace RFC 2026 sec 10 and that the other Scott's document 
is to be seen as guidelined to working groups in making sure they
understand the two new RFCs

Scott

---

From: Scott W Brim <[email-masked]>
Date: Fri, 28 Feb 2003 10:33:44 -0500

> IPR practice that should be documented in teh new IDs

I can't find it in any of the drafts.  Since it's a policy, it's yours.  

> understand the two new RFCs

Me too.