Subject: RE: Who do I tell? (A third-party finds IPR that could be problem atic...)

From: "Peterson, Jon" <[email-masked]>
Date: Fri, 14 Feb 2003 19:50:54 -0500

The problem is how we become "quite sure", I agree. I get the impression
that we're operating under three assumptions:

1. As engineers, we cannot discern the validity of all patents or patent
applications - that's what judges do; we cannot ascertain whether or not
patents are likely to be granted and subsequently upheld in court, to what
degree they are applicable to implementations of our standards, whether or
not the IPR holder will offer reasonable terms (in a third-party disclosure)
and so on. WG members and chairs could conceivably be exposed to liability
if they make public judgments on the validity of patents. The IETF as a body
cannot take a position on whether or not a patent is valid and applicable to
our standards (i.e. we can't openly take consensus of whether or not
something should be considered encumbered by a patent).

2. If a patent is valid and applicable, we should avoid technical solutions
that are encumbered by it. That doesn't mean we are obligated to do so, but
IETF participants are entitled to express disfavor for a proposal on the
non-technical grounds that it is encumbered. Many participants feel very
strongly about avoiding encumbered solutions.

It seems impossible to resolve the antecedent of 2 if 1 is true. This
disconnect is answered by a corollary that I've heard on this mailing list a
few times:

3. When in doubt, assume patents are valid and applicable.

As long as 1 is true, then 3 will be invoked, and we will accept 2 for any
given document that has been targeted by a disclosure. All we need then is a
well-intentioned third-party discloser (not even someone trying to be
malicious) regularly informing the IETF of the many patents and patent
applications that could be construed to be relevant to our standards work. I
suspect that we would shortly find ourselves without "unencumbered"
solutions in many areas. If the only thing preventing us from considering
half of the existing I-D repository "encumbered" is the want of such a
discloser, then we are using ignorance as a shield, which seems like a
precarious position to me given the recent experience in SIMPLE.

I may believe that some third-party disclosures made on, say, the SIMPLE
standard are  speculative or unverifiable or even groundless - but also
believe that if the claims covered SIMPLE, they would cover other IETF
standards as well. Surely we can't allow a third-party discloser to target
only one IETF standard, but not other IETF standards that use the same art.
I guess the original third-party discloser's opinion about the applicability
of the claims becomes contagious, then - I'm put into a position where I
have to be a discloser myself, but not because I have any good reason to
think that the claims apply. This is unconscionable to me, and if this is a
consequence of our IPR policy, I think there's a problem.

I suppose that one of the three assumptions above needs to be modified. I
don't think assumption 1 is plausibly under our control (unless we figure
out some way to assess reams of patents in a liability-free environment,
which sounds capital-intensive). 3 also seems like good advice.

Jon Peterson
NeuStar, Inc.

> -----Original Message-----
> From: Spencer Dawkins [mailto:[email-masked]]
> Sent: Friday, February 14, 2003 12:12 PM
> To: [email-masked]
> Subject: RE: Who do I tell? (A third-party finds IPR that could be
> problem atic...)
> 
> 
> I agree with Scott in principle but maybe not in practice, 
> unless "quite sure" means "you're a lawyer, or have significant 
> experience with patent law, you've read the patent, you've read 
> at least one draft that's affected, and you see a problem".
> 
> This thread has identified the need to avoid overly-general warnings.
> 
> I was distinguishing between rights and duties in a previous
> posting. I do like Scott's use of the word "duty". 
> 
> I don't think this situation will arise often, unless "quite sure" 
> is quite broad!
> 
> Spencer
> 
> > -----Original Message-----
> > From: Scott W Brim [mailto:[email-masked]]
> > Sent: Friday, February 14, 2003 2:01 PM
> > To: [email-masked]
> > Subject: Re: Who do I tell? (A third-party finds IPR that could be
> > problem atic...)
> > 
> > 
> > On Thu, Feb 13, 2003 03:17:48PM -0500, Peterson, Jon 
> allegedly wrote:
> > > If someone discloses third-party IPR
> > > against SIMPLE for fundamental instant messaging art, is it 
> > then my job (as
> > > SIMPLE chair) to make my own third-party disclosures 
> > against APEX, IMPP,
> > > XMPP, etc to even the playing field? Am I actually 
> > obligated to do this by
> > > the IPR policy?
> > 
> > Good question.  My belief: it has nothing to do with being 
> > SIMPLE Chair.
> > Rather, as an IETF participant, if you're quite sure there 
> are issues
> > that those WGs should know about, you should say so.  You 
> could start
> > out by just telling the Chairs, and work out from there, but yes, I
> > believe you have that responsibility.
> > 
> _______________________________________________
> Ipr-wg mailing list
> [email-masked]
> https://www1.ietf.org/mailman/listinfo/ipr-wg
> 
_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: "Bob Wyman" <[email-masked]>
Date: Sat, 15 Feb 2003 02:03:36 -0500

I share with Jon Peterson his concern that an over-zealous
attempt to shield us from potential infringements could hobble a great
number of the working groups that are doing excellent and important
work, however, I also share his concern that we may be "using ignorance
as a shield, which seems like a precarious position". 
	The reality is that there are a vast number of patents in force
and there are a vast number of new applications being filed and
published. (On Thursday, at least 16 new applications were published
that deal with "instant messaging" in one way or another. This happens
*every* week!...) At some point, we're going to have to figure out a
strategy for dealing with this stuff. Simply ignoring it won't make it
go away. The problem has always been there, but it is clear that it has
grown to a much greater urgency that it has been in past times. However,
we must find a way to deal with this problem of IPR without turning the
IETF working groups into debating forums for IPR lawyer wannabe's. The
task of the working groups is, and must remain, working on technical,
not legal, issues.
	A vital thread in Jon's argument is that "WG members and chairs
could conceivably be exposed to liability if they make public judgments
on the validity of patents." This potential liability explains why we
would need to jump immediately to his point 2, which implies that even
the hint of infringement would stop work. Also, the liability issue
explains why he is concerned that a duty to inform other WG chairs of
possible infringements would be onerous. (i.e. by doing so he may gain
liability.) If this liability exists, then anyone wishing to "turn off"
an IETF working group could simply send mail announcing probable
infringement and no one would be able to safely dispute the warning. The
WG would be compelled to stop even if everyone in the WG believed the
warning was unwarranted. A firm belief that the universe we live in is
usually rational prevents me from accepting that this can be
situation...
	To either say or write that one believes a patent to have been
improperly granted is neither libel nor slander and does nothing to
diminish either the value of the monopoly that is granted by that patent
or the degree to which some implementation may infringe upon that
patent. To argue that a patent is "incorrectly granted" is protected
speech. For me to say, as publicly as I may wish, that Worldcom's
attempt to patent the use of XML as a log file format is doomed to
failure does not incur legal liability for me. I can say it freely and
often without any fear of consequence. This is as it should be.
	On the other hand, if I were to say that a particular patent was
"fraudulently" obtained, or that an application was part of some
continuing fraud, then I would be in trouble. It is also the sort of
statement that we shouldn't tolerate in IETF WG's even if such
statements were completely permitted by the law.
	But, I am not a lawyer... So, you shouldn't trust anything I
say. Nonetheless, the question of whether or not liability exists for
statements concerning the applicability of a patent seems to be at the
crux of many of the issues here. Given the strategic nature of the
answer to this question, what would be needed to decide the issue? Does
the IETF have lawyers who can "rule" on this issue? If I were to get a
lawyer to write an "opinion" would that be sufficient? How do we decide
if Jon's concerns are well-founded?

		bob wyman

---

From: "Bob Wyman" <[email-masked]>
Date: Sat, 15 Feb 2003 02:40:39 -0500

In defense of the patent system: (perhaps a flame, but well
intentioned...)
	The US constitution grants Congress the right to issue patents
"to Promote the Progress of Science and useful Arts." The basic idea is
that we trade a limited (20 year) monopoly in exchange for having
inventors publicly and promptly (within 1 year of invention) disclose
their methods in great enough detail so that at the end of the term of
the monopoly their ideas become part of the public domain and so that
during the term of the monopoly their ideas can be studied, improved
upon, learned from, etc. We may argue that the term of the monopoly is
too long, or that the USPTO doesn't do a good job in deciding what
patents to grant, etc. However, the basic purpose of the system remains
the same -- and it is a laudable purpose.
	The fundamental purpose of the patent system is to create and
disseminate information -- not to reward inventors for their work. The
rewards are simply what we "pay" for their disclosures. Thus, any rule
or counsel that would discourage engineers from studying patents would
seem to be opposed to the very purpose of the system. Any such rule
would tend to reduce the utility of what inventors reveal in their
patents and thus should not be tolerated.
	Given the importance of this information in our system: such a
high importance that it is listed in the body of the constitution before
any of the later amendments such as freedom of speech, religion, etc.
And, given that study always leads to debate, I think we must see that
the drafters of the constitution probably envisioned that patents would
not only enlighten us but also enliven us with debate. To suggest that
we cannot debate what is in a patent would seem to suggest that we
should not study the things in the first place. Yet, the constitution
goes to great pain to ensure that patents are there to be studied. We
cannot accept that "WG members and chairs could conceivably be exposed
to liability if they make public judgments on the validity of patents."
Not in this country.
	If anything, we should be calling for people to take a greater
notice of patents and applications as a great store of knowledge and
source of technical inspiration. These things must not be solely of the
realm of lawyers. They exist for us.

		bob wyman

---

From: Scott W Brim <[email-masked]>
Date: Sat, 15 Feb 2003 15:45:47 -0500

On Fri, Feb 14, 2003 07:50:54PM -0500, Peterson, Jon allegedly wrote:
> and so on. 

True.  The validity of patent claims and the reasonableness of terms are
completely different matters, though.  The first cannot be decided
nearly as easily as the second.

> WG members and chairs could conceivably be exposed to liability

However, working group participants can evaluate the risks involved in
adopting a particular technology.  What is the likelihood of a patent
being upheld and enforced?  What is the likelihood of the licensing
terms being reasonable?  The latter question is more interesting because
it's usually easier to answer.  Terms for most patents are quite
reasonable.  If there is high probability that the terms will be
acceptable, then it doesn't matter whether the patent claim is
enforceable or not.  

> strongly about avoiding encumbered solutions.

.. and many do not.  Times have changed, and there isn't such a strong
dogmatic aversion to patented technology anymore.  Again, though, you
don't need to try to avoid all patents.  You need to look at the
licensing terms.

> which sounds capital-intensive). 3 also seems like good advice.

Here is my current recommendation on how things should work:

5.7 Third Party Disclosure

   Formal procedures for third party disclosures are the same as those
   outlined in [5].  However, before those procedures are followed some
   preliminary explorations are a good idea.  Third party disclosure is
   a potential denial of service threat to the working group, and
   therefore it is good form to proceed slowly.

   In general a potential discloser should exchange mail with the
   working group chair(s) first, to open the way for discussion.  Also,
   if the potential discloser is not sure if the IPR claim applies, this
   is the time to reach some kind of agreement with the working group
   chairs before saying anything publicly.  After discussion with the
   working group chairs, he should bring the issue to the attention of
   the working group, and to the attention of the IPR claimant if doing
   so is not too difficult.  If he is still not sure of the impact of
   the discovered IPR claim, he will become more sure, one way or the
   other. If he is sure the discovered IPR claim applies, and the IPR
   claimant does not send out a disclosure itself, then he has a
   responsibility to do so.

   Don't bring up IPR issues that are unrelated to the areas where the
   WG is focusing at that time.  Don't bring claims to the WG's
   attention just in case it might go there in a few months, only if it
   has implications for current work. Messages to the working group list
   should be substantive and a single message should focus on a specific
   issue.

   Working group participants should be aware that third party
   disclosure can be used, knowingly or unknowingly, to defocus and
   distract the working group and hinder its progress.  They should
   evaluate 3rd party claims accordingly.  WG chairs should be willing
   and able to discipline those they think are using the third party
   disclosure system inappropriately. Those who think they are being
   unfairly blocked may take the matter up with the Area Directors and/
   or the IESG.

   All of the criteria for evaluating IPR claims discussed in the
   sections above apply in the case of third party disclosures as well.

---

From: "Reb Thomas" <[email-masked]>
Date: Mon, 17 Feb 2003 15:57:37 -0500

I think that it is reasonable to resolve doubts about validity of an issued
patent (patent applications are a different story) in favor of the patentee,
but we need to remember reexamination proceedings are changing this
somewhat.  On the other hand, a patent application is subject to submissions
of prior art (if any of the participants knows of any) that may bring its
validity or liklihood of issuance as a patent into question.  Anytime a WG
chair or member has an opinion regarding the validity of a patent or the
chance that a patent application will be succesful, they should make it
clear that it is merely their opinion and that others need to form their own
opinions and not rely on the speaker's opinion.  The focus should be on
opinions on applicability of a patent (or potential future patent) to a
proposed standard.  The issue is how closely do the claims match some or all
of the standard and can the WG revise the standard to decrease the chance
that the patent may be applicable.  Hopefully, this WG is not letting the
possibility that they might "conceivably be exposed to liability" stifle the
good work that it is trying to do.

Calhoun "Reb" Thomas III
Thomas Law Firm
"Helping inventors with patents & other IP rights"
1201 Main Street, Suite 1980
Columbia, SC 29201

-----Original Message-----
From: [email-masked] [mailto:[email-masked]]On Behalf Of
Peterson, Jon
Sent: Friday, February 14, 2003 7:51 PM
To: 'Spencer Dawkins'; [email-masked]
Subject: RE: Who do I tell? (A third-party finds IPR that could be
problem atic...)

Jon Peterson
NeuStar, Inc.

---

From: Keith Moore <[email-masked]>
Date: Mon, 17 Feb 2003 16:45:43 -0500

> Anytime a WG chair or member has an opinion
> regarding the validity of a patent or the chance that a patent
> application will be succesful, they should make it clear that it is
> merely their opinion and that others need to form their own opinions
> and not rely on the speaker's opinion. 

Everything that a WG participant contributes is opinion.  Validity of a
patent is no different than anything else.  As always, people need to
consider the source of the opinion when deciding how much value it has.

> The focus should be on
> opinions on applicability of a patent (or potential future patent) to
> a proposed standard. 

strongly disagree.  

First, this gives too much weight to the presumption that the patent is
valid in the first place (ignoring the large numbers of patents that are
obviously invalidated by prior art - not that a court can be guaranteed
of finding them so).  Focusing on applicability of insane patents would
only cause the WG to waste time.

Second, given that both the applicability and validity of a patent are
subject to the whims of fickle patent officials and courts without a
shred of engineering sense, opinions of most WG participants on either
subject amount to crystal ball-gazing.  Such opinions are not likely to
be of much use.

So WG participants should try to keep detailed discussions of patents -
whether about validity or applicability - off of mailing lists as much
as possible.

Keith

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Mon, 17 Feb 2003 14:48:56 -0800

I think some on this IETF discussion list are misstating the real
problem with third-party IPR, particularly patents.  In doing so you are
simply avoiding the important task, to create an effective IETF
royalty-free patent policy.  

The only way that companies can reasonably rely on standards issued by
IETF is if the organization exercises reasonable diligence to clear any
outstanding IPR issues.  If you are cavalier about this problem, then
anyone who implements IETF standards in software or who becomes a user
of such software is risking way too much.  Remember, infringement
claimants probably won't sue IETF, they'll sue anyone who makes, uses or
sells infringing software.  

Why should a company adopt IETF standards if you aren't careful to
identify and obtain license rights to essential patents?

By way of contrast, W3C's draft patent policy deals with this problem in
some important ways.  For one, W3C member companies who actually
participate in working groups have disclosure obligations -- or rather,
limited opt-out opportunities to avoid mandatory licensing -- to protect
the public from infringement claims by those who actually craft the
standard.  Because working groups are likely to include participants
from all the major players in a technology arena, this leaves the public
with a "warm comfy feeling" that most relevant patents owned by W3C
members will either be licensed RF or expressly excluded.  

In IETF, there is no such comfort level.

Another important aspect of W3C's draft patent policy is its express
goal of royalty-free patent licenses for standards.  This means that,
when third party patents not available on RF terms do become essential
to make, use or sell "standard" software, the entire organization, its
advisory counsels, and the public at large are mobilized to analyze
those patents and attempt to license them or design around them.  It
becomes a collective responsibility rather than a user-by-user patent
analysis and licensing problem.  

In IETF, there is no such membership cohesion to obtain collective good
results within the constraints of antitrust law.  Every implementer and
user is on his own.

Your IPR discussion list got distracted by the less strategic problem of
"what should a working group do when patents comes to their attention?"
Until IETF develops a comprehensive IPR policy that helps protect
implementers and users from patent infringement claims -- one based on
royalty-free licensing obligations -- no prudent business person should
adopt IETF standards.  

/Lawrence Rosen
ROSENLAW.COM, a technology law firm
General counsel, Open Source Initiative
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * fax: 707-485-1243
email: [email-masked]
www.rosenlaw.com

---

From: "Bob Wyman" <[email-masked]>
Date: Mon, 17 Feb 2003 17:51:36 -0500

> keep detailed discussions of patents - whether about
> validity or applicability - off of mailing lists as 
> much as possible.
	"As much as possible" would seem to leave room for "some"
discussion... The question is: "How much and what kind of discussion is
appropriate?"

	If a WG is working on a problem and I find an expired patent
that describes a solution to the problem, then I assume there would be
no problem in discussing it -- thus, some patent discussion is ok. Dead
patents can be discussed freely. It's the "live" ones that are a
problem...
	If I find a journal article that discusses some method which is
the subject of WG interest, there will normally be no argument with my
letting the WG know about it and with my discussing it on the list. But,
should there be an issue here? Authors of articles don't always make
clear their current or intended IPR claims. Some of the measures that
have been proposed seem to indicate that before mentioning the article,
I would have to go through a process of due-diligence. I might, for
instance, be compelled to contact the author to determine if they intend
to pursue patents or IPR claims in the future and I might have to invite
that author to file submissions with the IETF. I might also have to
discuss the article first with the WG Chair and get a ruling on whether
it is wise to mention the article. I might also need to carefully review
the list of all active IETF WGs and ensure that the article is mentioned
to all of them if I mention it in any of them.
	I think we make a false distinction when we try to make rules
that apply to Patents as a class that is distinct from patent
applications, journal articles, conversations with friends, etc. There
are IPR problems with all of these. The mere fact that these problems
seem to be more evident for patents and patent applications doesn't
really change the fact that IPR issues are everywhere.

	We should not be writing or enforcing policies that hide IPR
issues from the Working Groups, rather, we should be building a
foundation on which the Working Groups can rely to pursue their goals in
the most efficient and effective manner -- in a world in which IPR
issues are a constant presence.

		bob wyman

---

From: Keith Moore <[email-masked]>
Date: Mon, 17 Feb 2003 18:24:07 -0500

> royalty-free patent policy.  

Given that it's impossible to reliably determine a patent's validity or
applicability in finite time or budget, how do you propose to do that? Or do
you think we should have a policy that further enables holders of dubious
patents (which in our field, is most of them) to hinder innovation and extort
money from implementors?

> identify and obtain license rights to essential patents?

Why should IETF give money to thieves?

Keith

---

From: [email-masked] (Bruce Perens)
Date: Mon, 17 Feb 2003 15:58:48 -0800 (PST)

From: Keith Moore <[email-masked]>
> patents (which in our field, is most of them) to hinder innovation and extort

Keith,

There are a few things we can reasonably well with our patent policy:

1. Prevent patent-farming by _working_group_members_ by mandating both
   a disclosure policy and a licensing policy. When you have a license
   that's workable by all implementors for the purpose of implementing
   the standard, you don't care (from a standards perspective) if the
   patent is valid or not. You may still choose to avoid the patent, so
   that there won't be a problem with using standard-related code for
   fields of use other than implementations of the standard.

2. Prevent, as much as possible, fraud by eavesdroppers on the WG.
   There _will_ be folks who follow the WG and file back-dated patents.
   In the US, you can back-date them by as much as a year if you are willing
   to lie under oath. Lots of people will be given the potential
   licensing income, so we want to cover this as well as we can - better than
   JEDEC did with Rambus in the appeals court.

3. Create a poison-pill defense against submarine patent attacks after a
   standard is released. About the best you can do is make sure that the
   attacker knows IETF will withdraw a standards recommendation rather
   than be extorted. Otherwise, every standard could become the target of
   _repeated_ extortion.

	Thanks

	Bruce

---

From: Keith Moore <[email-masked]>
Date: Mon, 17 Feb 2003 19:17:18 -0500

>    a disclosure policy and a licensing policy.

This is relatively easy to do.  However I'm not sure how much it helps-
because any company that wants to farm patents from IETF can simply 
separate the people who are farming the patents from those participating
in the WG.  That way they can 'eavesdrop' on the WG while still encouraging
their 'participants' to actively steer the WG in particular directions.
The WG participant need not be aware of actual patents, so he can't
be required to disclose anything.

> 2. Prevent, as much as possible, fraud by eavesdroppers on the WG.

I'm not sure how much we can do about this without compromising openness.
Even if we tried to control list access, nothing would stop an eavesdropper
from subscribing to WG lists under assumed names.  We could copyright the
list traffic (as a compliation) and try to limit access to those archives
to those who had agreed to not base patents on the material, but this
seems both legally and technically dubious.

>    than be extorted. 

It's been done before, but it's hard to make a general policy about it.
The approach that has been taken in the past has generally been one of
minimizing harm, but the mechanisms differ depending on the willingness
of patent holders and implementors to work together.  Also, once a de jure
standard is widely deployed it tends to become a de facto standard, so that
even if the de jure standardization is withdrawn or changed the de facto
status remains.

Keith

---

From: [email-masked] (Bruce Perens)
Date: Mon, 17 Feb 2003 17:21:21 -0800 (PST)

> in the WG.

The Rambus appeals court findings sent a very clear signal to standards
organizations: get our policy act together, or suffer open season on
patent farming. It may be that some of our sacred cows have to go in
developing an adequate policy.

But some of the IETF policies are not operable for any working
group that handles questions of the class of "Who gets the money?".
When you are developing technical standards, you're all working toward
the same goal. This is _not_ the case in the IPR working group, and
all WGs will encounter the same problem when they consider patents in
the future. Some of the policies that are going to have problems are:
consensus requirements, member participation as individuals, and the
non-organization nature of the IETF.

If you can't get the member to disclose whether or not his employer holds
a claim, and under what terms the employer will license that claim, who
will be able to implement? Perhaps the largest 5 or so companies that are
cross-licensed with each other? Is that the future we're trying to build?

> I'm not sure how much we can do about [fraud by eavesdroppers] without
> compromising openness.

The idea is to make them break a few more laws on the way to the patent
fraud, because it might be easier to catch (or convict) them on one than
the other. At the very least, you are going to need a copyright license
on the mailing list content. I hate the thought of restricting list access.

> It's [poison pill] been done before, but it's hard to make a general policy
> about it.

Once you set a default licensing policy for working group members, it
is easier to do this part.

	Thanks

	Bruce

---

From: Keith Moore <[email-masked]>
Date: Mon, 17 Feb 2003 20:42:59 -0500

> a claim,

how do you get a participant to disclose what he/she does not know?

(and for employees of large patent farms like IBM, how can we possibly
expect them to know about all pending and current patents that their
employers hold?  one hand does not know what the other is doing.)

two things that might help seem fairly simple extensions of current
policy:

1. WG participants have to agree to disclose any patents (current, pending
   or in process) that they know about that affect ability to build or
   use any technology under discussion.  The rules already require
   this, what is lacking is an affirmative statement by the participant.

2. WG participants have to certify that they are using their own best 
   engineering judgement as individuals (which is already required by the 
   rules), and specifically that they are not acting on instructions 
   from others (which is implied by those rules).  

But honestly I don't know of any way to bind the participant's employer 
without imposing a substantial barrier against participation by individuals.

I consider software patents a form of theft.  I don't patent anything that I 
do, I do what I can to discourage patents, and I choose to work for an
employer that (at least so far) is not much of a patent farm and does not try
to force me to patent things.  I work in the IETF as an individual; indeed, I
have often paid my own expenses to participate in IETF and done so on my own
time.  But there's no way that my employer would agree to risk any of its
patent holdings (meager though they might be) to allow me to participate in
IETF.  They would far rather forbid such participation.

So if we try to impose rules that bind participants' employers then it appears
to me that we'll end up with nothing but professional standards-goers in IETF.
Only those whose employers trust them to uphold their policies, and the
independently wealthy, will be able to participate.  And IETF will consist
entirely of people whose job it is to promote company policy rather than do
engineering. We would do far better to disband IETF than to move in that
direction.

Keith

---

From: "Bob Wyman" <[email-masked]>
Date: Mon, 17 Feb 2003 21:05:24 -0500

>2. Prevent, as much as possible, fraud by eavesdroppers on the WG.
	One small step that could be taken in preventing such problems
would be to stop the long-held policy of deleting old Internet Drafts
and also ensure that WG discussion archives are maintained
permanently...
	USPTO procedures explicitly permit "Electronic Publications" to
be submitted as "prior art" and states that the "posting date" on such
publications can be considered the date of publication. Where you see
references to "printed publications" these don't have to be on paper.
	The present system of allowing some list archives to be lost and
of deleting old Internet Drafts means that a substantial body of
material that can be used as prior art is being regularly flushed from
the system. Even if not lost, because these documents are often mirrored
on other systems, these documents become harder to find in the future,
long after people may have forgotten them... Keeping this data
available, on-line, and accessible to search-engines would make it just
a little bit more difficult for "eavesdroppers" or patent-trolls to get
away with it. 

		bob wyman

---

From: [email-masked] (Bruce Perens)
Date: Mon, 17 Feb 2003 18:11:02 -0800 (PST)

> employers hold?  one hand does not know what the other is doing.)

In this situation I am asking the company rather than the employee.
I am afraid that really is necessary. As part of participating in the
WG, they agree that if they don't find some piece of their own IP and
it comes up later, it will be licensed under certain terms. These terms
may be less favorable than the ones they would get otherwise.

If they don't want to go through the expense of searching their own patents
(it's surprising, but this happens), they commit to license all patents
they own that might contain claims upon the standard.

> I consider software patents a form of theft.

You and me both. I'd rather eliminate them. We need to do something
so that we can make standards while that longer fight is going on.

> But there's no way that my employer would agree to risk any of its
> IETF.

But in that case you can register under your own name, and if you are
really participating on behalf of your employer and do not say so, that's
fraud.

Your employer's IP policy probably says they own the work you do on your
own time. Most employers make their employees sign this sort of policy
when they are hired. If your IETF work is related to what you do for a
job, you should get a waiver from your employer releasing you to do it
on your own, and disclaiming liability for them.

> to me that we'll end up with nothing but professional standards-goers in IETF.

You're getting there anyway. But I think that good policy can enable
continued participation by the individual. No policy _will_ kill it in
our litigious present.

	Thanks

	Bruce

---

From: Keith Moore <[email-masked]>
Date: Mon, 17 Feb 2003 21:21:14 -0500

> > patent holdings (meager though they might be) to allow me to participate
> > in IETF.
> 

and you could hold *me* liable.  but not my employer.

what about the case where I'm not representing my employer, but my employer
has paid my expenses for the sake of 'professional advancement' or some such?
are you going to say that my employer is liable if it only pays my
expenses?  where do you draw the line?

> own time. 

if it did, I wouldn't be working here.   as it is, that's a big reason that
I continue to work here rather than for someone else.

bottom line: if you want to force my employer to agree to something as a
condition of my participation in IETF, then you effectively want to prevent me
from participating.  don't be surprised if I find that entirely unacceptable.

Keith

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 18 Feb 2003 09:59:33 +0100

> royalty-free patent policy.

Your thesis is not the consensus here, as far as I know, so
your conclusions don't follow.

   Brian

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 18 Feb 2003 11:23:53 +0100

> developing an adequate policy.

Yes, but we knew even before the recent decision in the Rambus
case that we needed to clarify our procedures; that's why this
WG exists. We haven't seen any evidence that there is a problem
in our policy, however.

> group that handles questions of the class of "Who gets the money?".

We don't deal with that question in the IETF, for a number of good
reasons, starting with the Sherman Act.

> the same goal. This is _not_ the case in the IPR working group, 

You are confusing me. First of all, conflicting goals are common
in our WGs. Different engineers have different goals; finding
consensus is often hard. Secondly, the IPR WG is sui generis. 
You can't argue from the consensus forming process here to
any other WG.

> ...and
> the future. 

All WGs that are notified of patent issues have to deal with it, but as
Keith Moore has observed, the best way to deal with it is to get it off
the table as quickly as possible. That's why we have the RAND policy -
as long as people are reasonably convinced that the patent holder will
indeed provide RAND conditions, we can move on. If they do better (i.e.
provide an RF licence) life is better, but we don't freeze up waiting for
it.

> Some of the policies that are going to have problems are:

We managed very well with these facts during the Internet boom years.
I don't see why it is suddenly going to change. By the way, the IETF
isn't a non-organization; it's an unincorporated association, with
ISOC available when a legal personality is required (as for the
copyright on RFCs).
 
> cross-licensed with each other? Is that the future we're trying to build?

If a contributor fails to disclose, given that our rules say s/he must disclose, 
the legal precedents are against her/him (with the recent Rambus twist that the 
disclosure rules must be explicit enough). I think the IETF's responsibility
extends to ensuring that our disclosure rules are adequate and unambiguous.
Beyond that, it's a societal issue outside our scope.
 
> on the mailing list content. I hate the thought of restricting list access.

Let's get real. Most contributors already have to get intellectual property
clearance on their explicit contributions (draft documents). If there was
any attempt to apply (C) to mailing lists, the clearance requirement would
most likely be extended there. Life as we know it would stop.

Obviously, the IETF won't restrict access to its mailing lists or its WGs.
There are lots of closed bodies for people who want to work in secret.
My concern is to prevent the IETF making any foolish changes that
would drive even more people towards those closed bodies.

> is easier to do this part.

As everyone knows, such policies, if restrictive, have the principal 
effect of driving people away to organizations with less restrictive 
policies. For example, the IETF has such a policy - RAND - and we could 
cite cases where patent holders have not taken part in IETF work for
this reason. Fortunately, they are a small minority since most
patent holders find RAND acceptable rather than restrictive.

The notion that the IETF would withdraw a standard, which is the
only poison pill available, really doesn't fly. If people want to
exercise the standard, they will do so, regardless of the status
attached to a particular RFC. In any case, I can't think of a better
way for the IETF to shoot itself in the foot. A standard is so
successful that people want to implement it despite expensive
licenses, and we want to *withdraw* it? 

   Brian

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 18 Feb 2003 11:30:57 +0100

Bob,

> and also ensure that WG discussion archives are maintained

Old drafts are in fact archived by the secretariat, and can be retrieved
for prior art purposes.

All WGs are supposed to keep an email archive, but this policy is
only a few years old so we probably have significant historical gaps.

    Brian

---

From: Scott Bradner <[email-masked]>
Date: Tue, 18 Feb 2003 08:05:48 -0500 (EST)

> only a few years old so we probably have significant historical gaps.

the archives on ftp.ietf.org/concluded-wg-ietf-mail-archive goes back to
the early 1990s - it does have gaps and missing WGs but there is
quite a bit of stuff there

> Old drafts are in fact archived by the secretariat, and can be retrieved

from RFC 2026 sec 8
   Internet-Drafts that
   have been removed (for any reason) from the Internet-Drafts
   directories shall be archived by the IETF Secretariat for the sole  
   purpose of preserving an historical record of Internet standards     
   activity and thus are not retrievable except in special
   circumstances.

in fact, old internet drafts have been produced by the Secretariat
in at least one patent case

a few years ago there was a discussion about making old IDs available  in
a different directory and clearly marked as not being current - following
the discussion the IESG decided to do this and asked the Secretariat
to gather all of the old IDs from backup tapes etc.  The Secretariat
did so (it took a while because the backups from a long time
ago were hard to find and read) - but just before the
archives were to be made available the discussion flaired up again 
and a few people were strongly against the idea - the IESG (which
had changed ADs between the original discussion and this point)
backed off of the idea

it is my *personal* opinion that the old IDs should be made
openly available (in a different directory and prepended by a 
page that says the ID was expired).  One of the complaints about
doing this was a claim that ID authors assumed that the ID
would only be available for 6 months - 1/ there are ID repositories
aroud the net that do not expire old IDs so expecting IDs to
go away afetr 6 months is unrealistic 2/ theer could be a process by
which an author who objected could inform the Secretariat which 
would replace the ID with a note saying that the author had requested
that the ID not be posted but that the ID was available by special
request (#2 was checked with the lawyer who said that it should
cover any legal objection)

but this topic should be discussed on this list

Scott

---

From: [email-masked] (Bruce Perens)
Date: Tue, 18 Feb 2003 06:40:14 -0800 (PST)

> and you could hold *me* liable.  but not my employer.

Well, that's _always_ the case today. You are the fall guy for your
company as far as liability is concerned.

> expenses?  where do you draw the line?

It's a matter of who is giving you instructions, rather than who is paying.
Are you acting on their behalf or not?

> I continue to work here rather than for someone else.

OK. But this is _not_ the case for most of the participants here. In
particular, I worked on employee policies for HP, and they did claim IP
that you created on your own time. I had to modify that so that HP employees
could participate in Open Source projects.

> from participating.  don't be surprised if I find that entirely unacceptable.

If you are sincerely participating on your own, this isn't an issue.
But I think you need to consider this from the other side - that some
companies will be participating in a pernicious manner. It's already
happened. They will be both patenting the work you do here for their
own benefit, and steering the WG toward their own patents. The appeals
court declared "open season" on that sort of behavior. If you read their
finding, you'll see that they put _all_ of the burden on the standards
body policy. We'd better do something about it.

	Thanks

	Bruce

---

From: "'Bruce Perens'" <[email-masked]>
Date: Tue, 18 Feb 2003 06:44:53 -0800

On Mon, Feb 17, 2003 at 09:05:24PM -0500, Bob Wyman wrote:
> publications can be considered the date of publication.

Yes, an ATT patent cites some Free Software that I wrote as prior art.
I think I managed to kill a claim that they would otherwise have made.
Search for "perens" in the patent database.

Of course old drafts and discussions should be archived.

In addition, the US patent system should assign priority to first-to-file
rather than first-to-invent. Most other countries do this. That would
solve the back-dating problem and make it much easier to show that prior
art like the WG discussion list really is prior art.

	Thanks

	Bruce

---

From: [email-masked] (Bruce Perens)
Date: Tue, 18 Feb 2003 07:26:00 -0800 (PST)

From: Brian E Carpenter <[email-masked]>
> reasons, starting with the Sherman Act.
 
You _do_ deal with that question when you decide whether or not
to allow a standards feature that is covered by a patent claim.
Someone owns that patent. You are extracting a RAND licensing
committment from them in return for embedding their patent in
a standard that is intended to be widespread - it might be something
that is implemented for all Internet users. This has a very clear
effect on the patent holder's bottom line.

In the case of the IPR WG, you are deciding whether or not the above
practice will be allowed at all, and there is a large contingent of
patent holding _companies_ (not individuals) pushing you forward upon this.

> consensus is often hard.

It's not the same. Engineers may differ in their goals, but they are
united in a desire to arrive at some sort of engineering standard
that all can use. A company's participation, on the other hand, is to
produce income for that company, possibly at the cost of income to other
companies. The companies hold the patents.

> the table as quickly as possible.

But the overriding policy seems to be a "don't ask, don't tell", as
nothing compels the _companies_ that direct their employees to
participate in IETF to make any patent disclosures or committments
whatsoever.

> We managed very well with these facts during the Internet boom years.

Isn't that a non sequitor? The issues were different then, this particular
problem has become much worse in the standards space since 1998.

> By the way, the IETF isn't a non-organization; it's an unincorporated
> association, with ISOC available when a legal personality is required

As an unincorporated association it avoids having the legal strength to
say much about member behavior. This worked great in the eighties. I
didn't ask for the law to be changed, but it was. And we still seem to
be avoiding the issue rather than dealing with it.

> If a contributor fails to disclose, given that our rules say s/he must
> disclose, the legal precedents are against her/him

Yes, but you are defining the contributor as an individual that the company
can, and will, direct without saying _why_ they are directing him. So
the company is insulated from all of this.

> most likely be extended there. Life as we know it would stop.

Because of a compilation copyright? I don't think so. Individual copyrights
of contributors could stand, that's not an issue. In contrast to what other
standards organizations do, this is a very small measure.

> Obviously, the IETF won't restrict access to its mailing lists or its WGs.

I wouldn't want that.

> would drive even more people towards those closed bodies.

Well, I think you might instead drive people toward a more open body,
with better policies. An RF-only replacement for IETF would be
considered more open even if it needed rules to support the RF policy.
If IETF persists in a RAND policy, we will have to create one.

This is off-topic, but I'd also make it junket-free to keep the budget
down for both the organization and participants. Having built a very
large Linux distribution (Debian) which has a large body of internal
standards, entirely without junkets, I know it's possible.

> only poison pill available, really doesn't fly.

Well, the assumption is that the standard would be reworked to avoid
the patent. 

> If people want to exercise the standard, they will do so, regardless of
> the status attached to a particular RFC.

But there is a financial disincentive, as they'd have to license, and
the license need not be RAND - remember that this is a submarine patent
attack we are talking about. I think there would be a lot of pressure to
rework the standard.

	Thanks

	Bruce

---

From: Keith Moore <[email-masked]>
Date: Tue, 18 Feb 2003 10:50:22 -0500

> If you are sincerely participating on your own, this isn't an issue.

it depends on how the rules are written.

> companies will be participating in a pernicious manner. 

Oh, I have no doubt about that.  The question is whether we can make rules
that discourage such activity without discouraging everyone's participation.
I work in an environment that is relatively friendly and open to doing things
for the public good.  If the rules would prevent me from participating, 
chances are that they're going to prevent most folks from participating.

Keith

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 18 Feb 2003 17:14:49 +0100

I think the gap between Bruce's worldview and mine is too great for
further discussion to serve much purpose, but he has one interesting
legal theory below that I'd like to examine:

> From: Brian E Carpenter <[email-masked]>

<snip>

> participate in IETF to make any patent disclosures or committments

<snip>

> the company is insulated from all of this.

In both of these cases, Bruce seems to argue that when I, as an employee,
participate in the IETF, using my employer's time and resources to do so,
I am nevertheless not acting as my employer's agent. 

I don't think so. Whatever the IETF's theory of individual participation,
the fact is that I remain an employee of my employer. When I, as an
employee, contribute to the IETF after reading the "note well" text
at http://www.ietf.org/overview.html, I fail to see how my employer
could claim to be insulated from RFC 2026. The language in 
draft-ietf-ipr-technology-rights-01.txt has been tightened up a bit
from RFC 2026, but in both cases I can't see a "get out of jail"
card for the employer. (The individual, on the other hand, is somewhat
protected by the "reasonably and personally known" clause.)

   Brian

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Tue, 18 Feb 2003 08:34:05 -0800

Brian,

I recognize there is no concensus yet.  And I recognize that we will
have a difficult time convincing people like you that the direction
you're leading IETF is a direction toward patent problems and ultimately
irrelevancy for IETF.  

As an employee of the world's largest patentholder you have a jaundiced
view -- but fortunately not a view that your company always shares.  You
should be aware that your company was one of the key participants
developing W3C's patent policy and that that policy is very different
from the one you are espousing here.

I hope that the rest of the contributors to IETF wake up even if you
aren't willing to.

/Larry Rosen

> From: Brian E Carpenter [mailto:[email-masked]] 
> Sent: Tuesday, February 18, 2003 1:00 AM
> To: [email-masked]
> Cc: [email-masked]
> Subject: Re: Who do I tell? (A third-party finds IPR that 
> could be problem atic...)
> 
> 
> > problem with third-party IPR, particularly patents.  In 
> doing so you 
> > are simply avoiding the important task, to create an effective IETF

---

From: [email-masked] (Bruce Perens)
Date: Tue, 18 Feb 2003 10:01:30 -0800 (PST)

> it depends on how the rules are written.

Absolutely. But we haven't gotten to the first step yet, which is
rechartering the WG to explore this issue and attempt to put together
some rules that are workable for all.

> The question is whether we can make rules that discourage [pernicious]
> activity without discouraging everyone's participation.

Well, if we _don't_ make rules, we're going to discourage participation
too. Once a single WG becomes parasitized, it will become a very strong
turn-off for participation in the entire IETF.

> chances are that they're going to prevent most folks from participating.

I work in an environment dedicated to doing things for the public good.
The inadequate IETF rules threaten to prevent us from being legally able
to participate in implementation of IETF standards. I think we can make
rules to protect my folks without driving out yours.

	Thanks

	Bruce

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Tue, 18 Feb 2003 10:10:54 -0800

Another not so smoking gun!  

I suggest the IETF patent policy make it clear that an IETF
participant's disclosure and licensing obligations apply to the company
or organization that actually pays for the participant's time and/or
expenses while participating in IETF activities.  

Participants should not bind their employers unless the employers pay
for their participation.

/Larry Rosen

> From: [email-masked] [mailto:[email-masked]] On 
> Behalf Of Keith Moore
> Sent: Tuesday, February 18, 2003 7:50 AM
> To: Bruce Perens
> Cc: [email-masked]; [email-masked]; [email-masked]; 
> [email-masked]
> > > bottom line: if you want to force my employer to agree to 
> something 
> > > as a condition of my participation in IETF, then you effectively 
> > > want to prevent me from participating.  don't be 
> surprised if I find 
> > > that entirely unacceptable.
> > 
> Oh, I have no doubt about that.  The question is whether we 
> can make rules that discourage such activity without 
> discouraging everyone's participation. I work in an 
> environment that is relatively friendly and open to doing 
> things for the public good.  If the rules would prevent me 
> from participating,

---

From: Keith Moore <[email-masked]>
Date: Tue, 18 Feb 2003 13:13:07 -0500

> turn-off for participation in the entire IETF.

just be careful that you don't demand a solution to an unsolvable problem.
it's entirely possible that the current policy is nearly optimal.

> > I work in an environment that is relatively friendly and open to doing
> > things for the public good.  If the rules would prevent me from
> > participating, chances are that they're going to prevent most folks from
> > participating.
> 
> to participate in implementation of IETF standards. 

please explain.

> I think we can make

any rule that binds my employer to conditions as a condition of my
participation isn't likely to fly.
_______________________________________________
Ipr-wg mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ipr-wg

---

From: [email-masked] (Bruce Perens)
Date: Tue, 18 Feb 2003 10:14:58 -0800 (PST)

> I fail to see how my employer could claim to be insulated from RFC 2026.

Does your employer really authorize you to make intellectual property
agreements on behalf of the company? For most of us, that is _not_ the
case. Besides, the Noto Bene doesn't even require an indication of consent.
Is it attempting to be a sort of tear-open license?

	Thanks

	Bruce

---

From: Keith Moore <[email-masked]>
Date: Tue, 18 Feb 2003 13:16:36 -0500

> expenses while participating in IETF activities.  

complete non-starter.   

have you *ever* made any technical contribution to IETF?
If not, stop trying to impose burdens that prevent technical work from
getting done.

---

From: [email-masked] (Bruce Perens)
Date: Tue, 18 Feb 2003 10:34:34 -0800 (PST)

> it's entirely possible that the current policy is nearly optimal.

I doubt it. We just did an RF policy for another organization, so I
don't think it's unsolvable.

> > to participate in implementation of IETF standards. 

Well, it's pretty simple. I work with the Open Source developer
community. Royalty-bearing patent licenses aren't available to us,
because we don't collect a royalty on our own software and thus have
no funds to pass on. So, as long as IETF rules allow patent royalties
to be charged on implementations of internet standards, we can't
implement those standards.

> participation isn't likely to fly.

If you are sincerely not participating on behalf of your employer, I
don't see why they would need to be bound to any terms whatsoever.

	Thanks

	Bruce

---

From: [email-masked] (Bruce Perens)
Date: Tue, 18 Feb 2003 10:40:26 -0800 (PST)

> have you *ever* made any technical contribution to IETF?

Larry is legal counsel for an organization representing software projects
that have made very substantial contributions to IETF standards, and stand
as the reference implementations of those standards. His job is to consider
their legal needs in navigating the intellectual property jungle. Thus, he
is probably more qualified than most of the people on the list to discuss the
WG topics.

That said, I agree that his proposal won't work for you. Explain to him
why, and he'll come up with a proposal that will.

	Thanks

	Bruce

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Tue, 18 Feb 2003 10:39:24 -0800

> If not, stop trying to impose burdens that prevent technical 
> work from getting done.  

Let me be clearer than I was in my last email on this point.  I
represent Open Source Initiative, an organization whose board of
directors has repeatedly and publicly insisted on royalty-free patents
for industry standards.  I was invited to participate on the W3C patent
policy working group because of my experience with intellectual property
law and my representation of the open source community.  The W3C working
group effort was a difficult, multi-year task that ultimately reconciled
many viewpoints into a workable RF patent policy.

I have not personally made any technical contributions to IETF.  But my
clients, and the open source community as a whole, are largely
responsible for the software that implements your standards.  We are
significant players and refuse to be ignored despite the arcane ways
that IETF uses to make decisions of this magnitude.  

/Lawrence Rosen

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Tue, 18 Feb 2003 10:47:35 -0800

Not arcane in that way.  Arcane in the sense that it's easy to pack the
room with voters.  Should we do that?  /Larry

> From: Scott Bradner [mailto:[email-masked]] 
> Sent: Tuesday, February 18, 2003 10:45 AM
> To: [email-masked]
> Cc: [email-masked]
> Subject: RE: Who do I tell? (A third-party finds IPR that 
> > refuse to be ignored despite the arcane ways
> "arcane ways" like community consensus?
> 
> arcane indeed
> 
> Scott
>

---

From: Keith Moore <[email-masked]>
Date: Tue, 18 Feb 2003 13:40:51 -0500

> don't think it's unsolvable.

w3c is a very different kind of organization.  it has institutional members.

> implement those standards.

in my experience very few IETF standards are encumbered by patents that
come from contributors to those standards.  in the cases where licensing
is required, RF seems to be the norm.

---

From: Scott Bradner <[email-masked]>
Date: Tue, 18 Feb 2003 13:45:24 -0500 (EST)

arcane indeed

Scott

---

From: Keith Moore <[email-masked]>
Date: Tue, 18 Feb 2003 13:47:49 -0500

> that IETF uses to make decisions of this magnitude.  

maybe you're not familiar with the rules of this organizaiton, one of which
is that participants represent their own judgement as engineers as to what
is best for the Internet, rather than the opinions of their employers.

if the "significant players" are making technical contributions to standards,
or if they're implementing our standards, they are free to represent
themselves in these discussions, and we will welcome their input.  but we will
not recognize you as their representative.

---

From: Keith Moore <[email-masked]>
Date: Tue, 18 Feb 2003 13:53:31 -0500

> why, and he'll come up with a proposal that will.

perhaps it's escaped Mr. Rosen's attention that IETF already has counsel to
advise it in such matters?

---

From: Scott Bradner <[email-masked]>
Date: Tue, 18 Feb 2003 13:53:45 -0500 (EST)

> room with voters.  Should we do that?  /Larry

Bruce threatend to do that

but you miss the detail that IETF decisions are mailing list decisions
not just those who can get to teh face to face meetings and do not
have a conflicting WG

Scott

---

From: Bruce Perens <[email-masked]>
Date: Tue, 18 Feb 2003 11:00:03 -0800

Like Larry, I have served for two years on the W3C patent policy board, and
speak internationally on the topic of software patents and industry standards.
A major component of my consults is to help the attorneys make enough sense of
technology so that they can help the technologists.

A lot of folks on the WG are engineers playing amateur lawyer, babes in
the woods of a very dangerous IP jungle. We persist in viewing that jungle
as much more benign than what it has really become. When someone who
actually knows the turf comes along, we shouldn't chivy him away for not
being an engineer.

	Thanks

	Bruce

---

From: [email-masked] (Bruce Perens)
Date: Tue, 18 Feb 2003 11:09:09 -0800 (PST)

> is required, RF seems to be the norm.  

Absolutely. But we have had a transition in the industry that will
change this, if we don't stay on guard. Most companies used to employ
their patent portfolios mainly to maintain a detente of cross licensing.
Now, more of them are looking to licensing as a major income source.
In addition, we've seen that an increasing number of governments are
becoming disposed to grant a patent on anything, regardless of triviality
or prior art. Thus, IETF and other organizations have come under pressure
to accept RAND-licensed patents into the core of their recommendations,
so that a few companies can set up toll-gates upon the Internet.

Thus, I feel that an informal committment to RF won't be sufficient to
maintain that norm in the future.

	Thanks

	Bruce

---

From: [email-masked] (Bruce Perens)
Date: Tue, 18 Feb 2003 11:14:44 -0800 (PST)

> advise it in such matters?

They seem to be taking no role whatsoever in this WG.

Shutting out the expert doesn't seem to be a productive means of making
policy.

	Thanks

	Bruce

---

From: Bill Manning <[email-masked]>
Date: Tue, 18 Feb 2003 11:16:48 -0800 (PST)

% > Not arcane in that way.  Arcane in the sense that it's easy to pack the
% > room with voters.  Should we do that?  /Larry
% 
% Bruce threatend to do that
% 
% but you miss the detail that IETF decisions are mailing list decisions
% not just those who can get to teh face to face meetings and do not
% have a conflicting WG
% 
% Scott
% 

	the IETF votes now!  doesn't that require discrimination on
	membership?

--bill
Opinions expressed may not even be mine by the time you read them, and
certainly don't reflect those of any other entity (legal or otherwise).
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---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Tue, 18 Feb 2003 11:12:26 -0800

Keith Moore wrote:
> maybe you're not familiar with the rules of this 
> organizaiton, one of which is that participants represent 
> their own judgement as engineers as to what is best for the 
> Internet, rather than the opinions of their employers.
> 
> if the "significant players" are making technical 
> contributions to standards, or if they're implementing our 
> standards, they are free to represent themselves in these 
> discussions, and we will welcome their input.  but we will 

I don't care whether you recognize me, but I will be heard!  In this
forum I represent my own opinion as well as the opinions of my clients
in the open source community.

Quite simply, if IETF allows royalty-bearing industry standards, the
open source community ultimately will not recognize IETF standards.  

I hope that Keith's attitude is not representative of the rest of the
IETF IPR WG.  The open source community is critical to your success as a
standards organization.  Do not write us off so cavalierly.  

Perhaps calmer voices will prevail.  I hope so, or IETF will be the
subject of an even bigger storm of protest than W3C got when it proposed
a policy allowing RAND licensing for standards.

Stop and think before you leap into that chasm.

/Lawrence Rosen

---

From: Keith Moore <[email-masked]>
Date: Tue, 18 Feb 2003 14:11:40 -0500

On Tue, 18 Feb 2003 11:00:03 -0800
Bruce Perens <[email-masked]> wrote:

> speak internationally on the topic of software patents and industry
> standards. A major component of my consults is to help the attorneys make
> enough sense of technology so that they can help the technologists.
> 

Hey, I'm happy if people with expertise try to give engineers clues about IPR
law.  And few of us will doubt that the IP jungle is dangerous. 

OTOH, statements of the form "you need to change your process entirely to do
this" from someone who hasn't worked as a contributor to the process and
doesn't appreciate the reasons that it works the way it does, are
appropriately dismissed as irrelevant.  And claims to be a representative of
some other organization don't exactly add to the contributor's credibility.

Keith

---

From: Keith Moore <[email-masked]>
Date: Tue, 18 Feb 2003 14:13:21 -0500

> I don't care whether you recognize me, but I will be heard!  

yawn.

---

From: Keith Moore <[email-masked]>
Date: Tue, 18 Feb 2003 14:24:27 -0500

> Shutting out the expert doesn't seem to be a productive means of making

some people have better things to do with their time than respond in detail
to every naive proposal that gets suggested here.

(what does that say about me?  dunno...)

Keith

---

From: [email-masked] (Bruce Perens)
Date: Tue, 18 Feb 2003 11:35:07 -0800 (PST)

From: Scott Bradner <[email-masked]>
> "arcane ways" like community consensus?

Scott,

That is one of the areas where you have a problem. Consensus will work
fine for engineering, but will not work to address questions of the class
of "who gets the money", which is what we are doing when we consider
patents. Some people want to take advantage of our lack of rules to
profit, at the expense of others who will be locked out. We simply can't
arrive at a consensus between those two parties. So, we default to not
making additional rules that would protect the folks who are locked out.

	Thanks

	Bruce

---

From: Scott Bradner <[email-masked]>
Date: Tue, 18 Feb 2003 14:36:54 -0500 (EST)

so some people are smarter than others?

---

---

From: [email-masked] (Bruce Perens)
Date: Tue, 18 Feb 2003 11:35:07 -0800 (PST)

Scott,

	Thanks

	Bruce

---

From: Ami Ganguli <[email-masked]>
Date: 18 Feb 2003 20:31:36 +0200

> maintain that norm in the future.

I wonder if a "meta-standard" group might be able to address the issue. 
Basically an additional body that does a patent search and seeks
statements from the likely suspects (participants in the WG and perhaps
a few large patent holders like IBM) that the standard is unencumbered. 
Kind of like getting a PG-13 rating.

That way implementors would have some assurance that the standard is
safe.  WGs could try to ensure that they met the requirements for
certification during the development process, but this wouldn't be a
requirement.

In practice it's likely that only "safe" standards would be widely
implemented, so the incentive to get certification for your standard
would be quite high assuming you wanted to see it succeed.

Also, if patent problems are discovered, the process of striking down
the patents can take place outside of the IETF and certification can be
obtained at a later date.

The rating system might even have degrees, depending on how much risk
the implementor is willing to assume: G = believed to be unencumbered, 
PG = encumbered by bogus patents that probably wouldn't hold up, R =
encumbered by patents that stand a good chance of holding up, XXX =
encumbered by patents that have already stood up in court.

.... Ami.

-- 
Ami Ganguli <[email-masked]>

---

From: [email-masked] (Bruce Perens)
Date: Tue, 18 Feb 2003 11:49:23 -0800 (PST)

> so some people are smarter than others?

Huh?

I'm not sure where this is coming from, as it's in response to a
question regarding consensus, but I'll try to answer it anyway.

At the W3C patent policy working group, they went through angst at the
lack of consensus, and had to accept some rather close votes on patent
policy. They accepted that a consensus was not possible on some topics.

	Thanks

	Bruce

---

From: Scott W Brim <[email-masked]>
Date: Tue, 18 Feb 2003 14:57:20 -0500

> Kind of like getting a PG-13 rating.

Working group participants will do so, independently, if it's important
enough to them, and they are the experts, so they should be the ones
doing the evaluation.

> obtained at a later date.

Definitely.

---

From: [email-masked] (Bruce Perens)
Date: Tue, 18 Feb 2003 12:05:49 -0800 (PST)

From: Ami Ganguli <[email-masked]>
> a few large patent holders like IBM) that the standard is unencumbered. 

This came up as an audience question at the "Issues in ICT
Standardization" conference at MIT a few months ago. "Why don't we just
do patent searches?"  I think everyone who replied felt that patent
searches were useless for the purpose of telling you whether or not
an algorithm was OK to use in your standard. Scott Bradner was there,
so he may remember this better than I. The answers I heard were:

	There may be undisclosed patent applications in process, that
	are not available for you to search.

	Searches simply can not be exhaustive. No matter how hard you
	look, you can always look more. A thorough search would be very
	expensive.

	Searching doesn't help determine whether or not a patent can be
	enforced - which is a concern because there are so many patents
	that should not have been granted at all. Only a court can
	determine enforcibility. It costs each party to a patent
	infringement case on the order of US$500,000 to persue the case.

	Patent claims (at least in the US) do such a poor job of
	explaining the invention, that it can often be difficult to
	figure out whether a particular patent reads on the algorithm
	you are trying to develop or not.

	Once you've read the patent, you expose yourself to treble
	damages.  Thus, it's better not to know.

Some of the people answering were Tim Berners-Lee and Brian Kahin (an
academic who studies intellectual property issues).

	Thanks

	Bruce

---

From: Scott W Brim <[email-masked]>
Date: Tue, 18 Feb 2003 15:04:10 -0500

> making additional rules that would protect the folks who are locked out.

It is possible to consider patents in other terms than "who gets the
money" -- like, for example, taking into account both the patent's
licensing terms and many other criteria, some of them technical, in
deciding whether to adopt a technology.  When we consider patents, "who"
is not the most important question at all.
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---

From: "Joel M. Halpern" <[email-masked]>
Date: Tue, 18 Feb 2003 15:09:03 -0500

Quite simply, if you are correct, the "open source community" is welcome to 
ignore the IETF standards.  The IETF does not have, and has never claimed 
to have, any enforcement power.  We write documents that describe good 
technical solutions to problems.  If folks want to do something else, or 
reach agreements elsewhere, they are certainly free to do so.

I would note in passing that the collection of folks who work on open 
source projects is a diverse and varied group of people.  As far as I know, 
they are not "governed" by anyone.  They will individually choose what they 
want to work on.  I appreciate many of the results they have produced.  But 
that does not mean that the IETF should change the process which has 
produced the many strong results to date just to preserve a specific group 
of participants.

Yours,
Joel M. Halpern

---

From: Scott Bradner <[email-masked]>
Date: Tue, 18 Feb 2003 15:13:06 -0500 (EST)

I agree with Bruce's memory on this - prior art seraches can be 
helpful but they are not at all easy - maybe a place that some AI could be
applied in the future (frequently one needs AI to parse patent claims
particularly when they are being aplied years after the fact to
someting that would not have been seen as related)

this is not easy stuff

Scott

-----

---

From: [email-masked] (Bruce Perens)
Date: Tue, 18 Feb 2003 12:05:49 -0800 (PST)

Thanks

	Bruce

---

From: Ami Ganguli <[email-masked]>
Date: 18 Feb 2003 21:15:23 +0200

On Tue, 2003-02-18 at 22:05, Bruce Perens wrote:
> an algorithm was OK to use in your standard. 

That doesn't change the substance of the argument, only the
implementation.  The point is to take whatever steps needed to give some
comfort to people implementing the standard.  Patent searches might be
one way, but another would be to collect statements from the
participants in the WG - basically the same as what you're proposing the
IETF require.

As an implementor who really is not in a position to even attempt to
figure out the patent landscape, all I want is some qualified people to
give me their best guess.  I know it's just a guess, but it's a whole
lot better than me guessing on my own.

>         damages.  Thus, it's better not to know.

I as the implementor wouldn't know.  It's the job of the outside body to
give me some advice.  I would never read the patents myself.  I suspect
that I might even be able to use the certification in my own defense if
it ever came down to damages: "not only have I never heard of that
patent, but these qualified IPR experts told me they thought the
algorithm was unencumbered."

The reason I suggest this is that I think it might be easier and maybe
more effective than changing the IETF rules.  It relies less on the good
will of the participants.

... Ami.

---

From: Ted Hardie <[email-masked]>
Date: Tue, 18 Feb 2003 12:04:31 -0800

>I don't care whether you recognize me, but I will be heard!

Certainly.

>In this
>forum I represent my own opinion

Absolutely.

>as well as the opinions of my clients

Not so much.  As a lawyer, you realize that there are different ways
to make contributions to different fora.  You contribute to a legal journal,
as an example, in ways that are different from the ways you contribute
a friend of the court brief.

Your clients are, of course, free to listen to your advice and contribute
to the IETF process accordingly.   According to our current process,
though, you do not represent their opinions.  You represent yourself
and you present your expertise.  Saying that this does not allow you
to represent others in no way means that we do not appreciate your expertise.

>open source community ultimately will not recognize IETF standards.

I have written open-source software and relied on open-source software
both professionally and in other ways.  Most of the folks who work in that
mode with whom I have had interactions would modify that statement to:

"will not _implement_ IETF standards _which are licensed according to terms
which hinder their work_".

That is, they would recognize that they are standards, but not put their
own labor into implementing them if they did not meet their requirements.
They would also discriminate between IETF standards which do
and IETF standards which don't meet their needs.  I, of course, do not
represent any one other than myself here, but I believe there to be
a different view in at least part of the Open Source community
than the one you have put forward.

On the broader point, as an engineering community those participating in
the IETF are dedicated to trying to consider the Internet
as a whole and to making decisions which are the best possible
for the whole.  Ruling out any class of contributions is very risky, because
the best engineering result for the Internet as a whole may be achieved
by selecting a system which comes from that class.  Encumbrance is,
as you can see from our processes,  one factor, but it cannot be an
over-riding factor if we are to keep our goal as putting forward
"the best answer for the Internet as a whole".

>standards organization.  Do not write us off so cavalierly.

Asking folk to participate according to the rules of the forum is not
equivalent to writing someone off.

>Stop and think before you leap into that chasm.

Having a working group dedicated to this discussion is our way
of "stopping and thinking" about the issue.  Our goal, though,
is achieving the best result for the Internet as a whole, not
achieving purity of licensing.

As noted above, this is my personal opinion,
                                         best regards,
                                                 Ted Hardie

---

From: "Joel M. Halpern" <[email-masked]>
Date: Tue, 18 Feb 2003 16:47:25 -0500

It occurs to me re-reading my note that some may think I was intending to 
disparage the open source community.  If some saw that in my note, I 
apologize, as that was not my intent.  The open source implementors are a 
valued part of this community.

I was responding to Lawrence's threat in your name, not to any actual 
aspect of the community.

Yours,
Joel M. Halpern

At 03:09 PM 2/18/2003 -0500, Joel M. Halpern wrote:
>Quite simply, if you are correct, the "open source community" is welcome 
>to ignore the IETF standards.  The IETF does not have, and has never 
>claimed to have, any enforcement power.  We write documents that describe 
>good technical solutions to problems.  If folks want to do something else, 
>or reach agreements elsewhere, they are certainly free to do so.
>
>source projects is a diverse and varied group of people.  As far as I 
>know, they are not "governed" by anyone.  They will individually choose 
>what they want to work on.  I appreciate many of the results they have 
>produced.  But that does not mean that the IETF should change the process 
>which has produced the many strong results to date just to preserve a 
>specific group of participants.
>
>Yours,
>Joel M. Halpern
>

---

From: Randy Bush <[email-masked]>
Date: Wed, 19 Feb 2003 08:31:59 +0900

> represent Open Source Initiative

nope.  the ietf is made up of individual technical experts.  but
thanks for playing.  bye now.

randy

---

From: Randy Bush <[email-masked]>
Date: Wed, 19 Feb 2003 08:35:49 +0900

> room with voters.

as we don't vote, this will be amusing.

> Should we do that?

i lived in california for three years, so whatever gets you off.

but you will have to excuse if we ignore non-contributors.

randy

---

From: Randy Bush <[email-masked]>
Date: Wed, 19 Feb 2003 08:43:11 +0900

> Shutting out the expert doesn't seem to be a productive means of making

problem is that i have yet to hear anything new of substance.  so
far it's a bunch of bluster and threats.  we have met the enemy and
them is us.

randy, usually on the rather far left of the ipr discussion

---

From: [email-masked] (Bruce Perens)
Date: Tue, 18 Feb 2003 16:14:39 -0800 (PST)

> all I want is some qualified people to give me their best guess.

OK. That is a realistic asessment.

The next problem is that some of these people are lawyers, and are giving
you legal advice that you are using for a business competitive decision
that can effect the patent holder. There are liability and anti-trust
issues that must be dealt with. Because of that, I think the standards
organization will want to decouple itself from the expert group, though
it might work for the standards organization to be the expert group's
customer.

Do not expect the standards organization to ever warrant that a standard
is infringement-free.

	Thanks

	Bruce

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Wed, 19 Feb 2003 09:59:41 +0100

> open source community ultimately will not recognize IETF standards.

it's simpler than that, actually.

Like the IETF, the open source community is essentially ungovernable.

FOR EACH STANDARD that requires non-RF licensing, some significant fraction 
of the Open Source community (the part that sees reason to avoid those 
terms) will not implement it. This will make THAT PARTICULAR STANDARD less 
useful to the community.

In the case where a competing standard that is not known to require such 
licensing (see Ogg Vorbis vs the MP3 codec, GIF versus PNG) exists, the 
competing standard will be useful to the community because it is 
implemented by many people, including that part of the open source 
community.

If that added usefulness makes the other standard more useful overall to 
the community, a good argument exists in the IETF for promoting the 
competing standard and removing the encumbered one from the standards track.

If it doesn't....?

A draconian IPR policy is the Maginot line strategy of IPR defense.

"we shall defend our Island, whatever the cost may be, we shall fight on 
the beaches, we shall fight on the landing grounds, we shall fight in the 
fields and in the streets, we shall fight in the hills; we shall never 
surrender." - Winston Churchill, 1940.

[some people will now use the Usenet Rule and claim that this thread has 
ended.]
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---

From: Brian E Carpenter <[email-masked]>
Date: Wed, 19 Feb 2003 10:39:13 +0100

> you're leading IETF is a direction toward patent problems and ultimately

I'm suggesting that the IETF should stay exactly where it is. We've
had patent problems for many years, and have steered round them due
to the pragmatism and flexibility of the present policy. 

> view -- 

My view on this matter hasn't changed since I joined my present
employer in 1997, although it has certainly become more of an
issue in my day job.

> but fortunately not a view that your company always shares.  

I would refer you to the various IPR disclosures that my employer
has made to the IETF, to see what position it has taken.

> You
> developing W3C's patent policy 

I am deeply aware of that.

> and that that policy is very different

I think people who know the detailed history of the development of
that organisation's policy will recognise that while both your statements
are true, they do not imply what position my employer took during
the process.

> I hope that the rest of the contributors to IETF wake up even if you

I think we are awake. The question on the table is whether a change
of policy would help or hurt. And the arguments for that are also
on the table. 

   Brian

---

From: Brian E Carpenter <[email-masked]>
Date: Wed, 19 Feb 2003 10:53:55 +0100

Somebody wrote:

> > So, as long as IETF rules allow patent royalties

There is no way the IETF (or any other standards body, whatever 
rules it has for its own members) can prevent 3rd parties
with legitimate IP charging royalties.

Fixing this is a political issue, not an IETF issue.

    BRian

---

From: [email-masked] (Bruce Perens)
Date: Wed, 19 Feb 2003 16:08:55 -0800

> Like the IETF, the open source community is essentially ungovernable.

Harald,

The Open Source project that I work with has a proper 501(c)3 corporation
approved by the IRS for tax-free donations. One of its sub-projects is the
Debian distribution, which has some 900 developers who elect their project
leadership and have constructed a thick manual of internal standards that are
mandiatory for the project.

Other Open Source projects, for example the Apache Foundation, are similarly
well-organized. Apache has a code-committer agreement that must be
signed and returned, and significant rules regarding IPR and company
participation.

I can assure you that these organizations, and other major ones, have
already set their policy not to make use of encumbered standards.

	Thanks

	Bruce

---

From: Keith Moore <[email-masked]>
Date: Wed, 19 Feb 2003 19:32:34 -0500

> already set their policy not to make use of encumbered standards.

Of course.  Who wants to be a slave to a patent holder?

On the other hand, it's entirely possible that these organizations (and more
generally, those individuals and organizations that develop open source
software) have varied opinions about which standards are encumbered, and by
which patents.

What you seem to believe is that IETF should somehow make a decision on the
behalf of all implementors about the validity of patents and their
applicability to IETF candidates for standardization.  Dream on.  There is no
way that IETF is going to do that.

---

From: [email-masked] (Bruce Perens)
Date: Wed, 19 Feb 2003 16:49:52 -0800 (PST)

> software) have varied opinions about which standards are encumbered, and by

As a part of the W3C work, we established the minimum necessary for any
of those organizations. This is an RF license for the claims necessary
to implement the features of the standard. Other fields of use aren't
covered by this minimum license. None of the Open Source organizations
can deal with less than this.

The maximum, of course, is a royalty-free license to exercise any claims of
the patent for any purpose whatsoever. This is more than a patent holder
would have reason to grant the standards organization.

There was a suggestion for a license that discriminated in favor of Open
Source software, by not offering the royalty-free terms to software
with licensing that does not pass some critiria like the Open Source
Defintiion. This was very strongly objected to by the proprietary
software concerns on the W3C patent policy board, and nothing came of it.

So, what we are left with is a royalty-free and non-discriminatory
license, for the minimum claims necessary to implement the standard
and no other use. I submit that this would also be the minimum criterion
for IETF.

> behalf of all implementors about the validity of patents

Oh no, we only ask that they be licensed, not valid. Only a court can
tell you if they are valid. Determining if they are licensed is much
simpler.

> and their applicability to IETF candidates for standardization.

The WGs already deal with that issue - today mostly by rejecting algorithms
with known patents in favor of other ones.

	Thanks

	Bruce

---

From: Keith Moore <[email-masked]>
Date: Wed, 19 Feb 2003 19:57:11 -0500

> > On the other hand, it's entirely possible that these organizations (and 
> > more generally, those individuals and organizations that develop open 
> > source software) have varied opinions about which standards are encumbered, 
> > and by which patents.
> 
> to implement the features of the standard. 

you admit you can't tell which patents are valid.
you admit you can't tell which patents are applicable.

so you are going to demand that even patents of questionable validity or
applicability be licensed.  do you understand the meaning of the term
"denial of service attack"?

---

From: [email-masked] (Bruce Perens)
Date: Wed, 19 Feb 2003 17:27:55 -0800 (PST)

> "denial of service attack"?

So, here's how we dealt with that in the W3C policy.

W3C members are mostly corporations and organizations - unlike IETF today.
There _are_ some invited experts who are individuals and have to sign
the same IP agreements that companies would - but not necessarily on
behalf of their employers.

Those who were participating on the working group agreed to:

A. Disclose and license the IP that _they_ felt was applicable
or
B. Blanket-license all of their IP that might later be found applicable
   with the minimum license.
   
If they chose B, they didn't even have to search their own IP.

If they chose A and later found more applicable IP, they could not
come after implementors with a claim unless those implementors were
applying the patent to a wider field of use than simply implementing
the standard.

Having gotten that out of the W3C members, we could go on with our lives
confident that they weren't going to patent-farm the WG. We didn't have
to search their IP. We didn't have to figure out if it was valid.

What did we do about outsiders to the WG? What we could, which was
establishing that we'd rescind the standard and craft a new version with
a work-around as credible submarine patent attacks came up. We felt that
any less than that would lead to repeated extortion attempts - this is
the real form of the DOS attack you speak of. We do have to evaluate the
submarine patent attacks, but anyone would - we just do our best to make
them unprofitable, and thus minimize them. It's far from perfect, but the
best we could do within today's laws.

Now, this doesn't fit the IETF structure of today. But it lets us make
standards in W3C with a lot more confidence about patent infringement
than I think we'd have with a similar IETF standard today. So much so
that I think we'll see work move to W3C from IETF because of the patent
policy. And this leads me to think that the folks who are saying "The
IETF anti-organizational structure isn't a bug, it's a feature!" might
be wrong in the context of today's pernicious legal framework. It's not
their fault - the world changed in ways they didn't ask for.

	Thanks

	Bruce

---

From: Keith Moore <[email-masked]>
Date: Wed, 19 Feb 2003 20:45:10 -0500

> W3C members are mostly corporations and organizations - unlike IETF today.

And unlike IETF in the future.  This is not going to change.

> the real form of the DOS attack you speak of. 

No, the DoS attack I'm speaking of (which I've seen) is this:  Company X has a
proprietary protocol to do Y, and a patent of dubious applicability and/or
validity that at least tagentially touches on protocols that do Y.  For
whatever reason, company X doesn't want a standard protocol to do Y.  So they
claim that their patent applies to Y and refuse to license it under anything
resembling reasonable terms - certainly not RF terms - until they have market
dominance in that area.  At which point the disruption that customers suffer
in switching to the standard protocol tends to work in company X's favor.

> And this leads me to think that the folks who are saying "The
> be wrong in the context of today's pernicious legal framework.

And you might be wrong.  Forgive us if we don't take your word for it.

Now that conditions have been established which allow W3C to be
so easily maniuplated, it's doubly important for IETF to not succumb
to the same attack.  Or to put it more kindly, the community benefits 
from some diversity in standard organizations' approaches to IPR -
it means that protocol development is overall more resilient to
IPR-based attack.

Keith

p.s. and in order to prevent your messages from being denial-of-service
attacks, I'm not going to continue this conversation.  it should be 
obvious to you by now that your position is unpersuasive.
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---

From: [email-masked] (Bruce Perens)
Date: Wed, 19 Feb 2003 17:58:11 -0800 (PST)

> in switching to the standard protocol tends to work in company X's favor.

Company X runs several risks:

1. Wearing out their welcome in the standards organization where this
   happens, and thus losing their influence on future standards.
2. Marginalizing their own IPR by promoting the development of
   alternative techniques, early in the process.
3. Being widely exposed as a blocker of industry cooperation,
   accumulating significant ill will in the industry and among
   customers.

We felt that members would not go this path in W3C, because the damage
to them would simply be too high.

	Thanks

	Bruce

---

From: Russell Nelson <[email-masked]>
Date: Wed, 19 Feb 2003 21:33:37 -0500

Keith Moore writes:
 > Given that it's impossible to reliably determine a patent's
 > validity or applicability in finite time or budget, how do you
 > propose to do that? Or do you think we should have a policy that
 > further enables holders of dubious patents (which in our field, is
 > most of them) to hinder innovation and extort money from
 > implementors?

I'm not sure you and Larry are solving the same problem.

Larry wishes that the IETF would seek royalty-free licenses from IETF
members contributing to the standard.  Third-party patents are a whole
'nother ball of wax.

Keith is not wanting the standards process to be held up by bogus
patents, but ahhh, I repeat myself.

 > Why should IETF give money to thieves?

Aacck.  Larry is in no way proposing that the IETF should PAY to
license these patents.

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Crynwr sells support for free software  | PGPok | wrong to offset what it
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---

From: Russell Nelson <[email-masked]>
Date: Wed, 19 Feb 2003 22:01:23 -0500

Brian E Carpenter writes:
 > policies.

And yet the W3 has managed to enact a policy of requiring royalty-free
standards.  So I guess that not everyone knows this.

 > For example, the IETF has such a policy - RAND - and we could cite
 > cases where patent holders have not taken part in IETF work for
 > this reason.

The problem with RAND is that it doesn't work for open source
implementors.  Look at the way the IETF has gotten multiple
interoperating implementations in the past: they've all been open
source implementations.  Every major protocol has been implemented in
the open source world.  Allowing RAND breaks that history.

 > only poison pill available, really doesn't fly.

On the other hand, *by definition* a standard that requires a royalty
withdraws the standard from the open source world.

 > A standard is so successful that people want to implement it
 > despite expensive licenses, and we want to *withdraw* it?

Nobody thinks that's a good thing.  Nobody ever wanted war.  Everybody
who fights a war believes it to be the last resort.  So is withdrawing
a standard.  But if patent extortionists (not all are, but some
DEFINITELY are) know they won't have a guaranteed source of
implementations, they'll be less likely to try extortion.  As Keith
says, a withdrawn standard still has defacto power, but when the open
source implementations are withdrawn at the same time, it has less
such.

---

From: Keith Moore <[email-masked]>
Date: Wed, 19 Feb 2003 22:36:53 -0500

> members contributing to the standard. 

IETF does not have members.  And few IETF participants are patent holders.

---

From: Keith Moore <[email-masked]>
Date: Wed, 19 Feb 2003 22:50:04 -0500

> the open source world.  Allowing RAND breaks that history.

Actually that is well-understood, and in practice there's been considerable
pressure to build standards that either don't use technology  that is known to
be encumbered, or to use technology that is licensed under terms that are
compatible with open source software - at least for things that can reasonably
be implemented on general-purpose machines.  It's just that there's no formal
reqiurement to do so.  If the consensus of IETF (remember there are last call
issues also, so it's not just the WG that decides) is to make the standard
depend on encumbered  technology, then this is possible under the rules.  But 
given that IETF has open source implementors among its participants, how often
is IETF likely to produce such a consensus?   I don't recall it ever
happening when there were other ways to solve the problem.

Now IETF has made standards that use encumbered technology.  But whenever
possible an alternative way to do the same thing that is encumbered was
also standardized, and the "mandatory to implement" technology required
for minimum interoperability was the unencumbered one.  So open source 
implemenations could still interop with conforming implementations that
used the proprietary technology.  

> withdraws the standard from the open source world.

Yes, but it also makes it extremely difficult to get consensus on that
standard in the first place.

Keith

---

From: "Lawrence E. Rosen" <[email-masked]>
Date: Wed, 19 Feb 2003 20:00:03 -0800

> > members contributing to the standard.

... and the companies that sponsor them in their IETF activities....

/Larry Rosen

---

From: Russell Nelson <[email-masked]>
Date: Wed, 19 Feb 2003 23:05:19 -0500

> IETF does not have members.  And few IETF participants are patent holders.

That is a great 80's view of the IETF.  Wonderful, except this is
2003.  Do you really think that [email-masked], and [email-masked]
aren't representing their employer's interests?

---

From: Russell Nelson <[email-masked]>
Date: Thu, 20 Feb 2003 00:09:29 -0500

> used the proprietary technology.  

I hear you saying "What are you worried about?  What you fear doesn't
happen."

That *is* comforting to hear, but it's not an argument against an
official IETF policy requiring RF licensing.

David Friedman wrote an interesting book called Hidden Order, in which
he explained why some things are illegal and why some things come with
a penalty.  As an example of the latter, he pointed out that if you
have a car accident, you are liable for the effects of it.  This is
because there are WAY too many factors, some of which are hidden
inside the brain of the driver, which affect a driver.  By imposing a
penalty on failure, the driver is thus encouraged to use her internal
information.  Some drivers will then refrain from driving while
impaired, or will refuse to eat tacos while driving.

Similarly, there is NO WAY for the IETF to not incorporate patents
into standards.  If nothing else, there are submarine patents.  It
can, however, penalize patent holders by withdrawing standards which
are not licensed royalty-free.  Nobody thinks that would be a good
thing.  Better for it to not happen.  Better for the car accident to
not happen.  If you don't have the incentive of liability, though,
you're going to have more accidents.

---

From: Keith Moore <[email-masked]>
Date: Thu, 20 Feb 2003 01:29:31 -0500

> 2003.  

I'm actively doing work in IETF.  Are you?  If not, don't tell me that my
view is antiquated and yours is current.

> Do you really think that [email-masked], and [email-masked]

If they are ignoring their best engineering judgement, they're breaking the
rules.  And yes it happens all the time.  It also happens that people call
them on it all the time.

Keith

---

From: Keith Moore <[email-masked]>
Date: Thu, 20 Feb 2003 01:36:49 -0500

On Thu, 20 Feb 2003 00:09:29 -0500

> official IETF policy requiring RF licensing.

no it's not.  but several good reasons to not require RF licensing
have been given.

> It can, however, penalize patent holders by withdrawing standards which
> are not licensed royalty-free. 

yes it can.  in fact, IETF has done this several times.  (or something
similar - like removing the encumbered parts of the standard before
advancing it in grade).  it was the right thing to do.  but in the cases 
that come to my mind, it didn't seem to make much of a difference in
practice. 

Keith

---

From: Brian E Carpenter <[email-masked]>
Date: Thu, 20 Feb 2003 12:14:10 +0100

> Of course.  Who wants to be a slave to a patent holder?

So, how come Linux supports SNMP and OSPF (for example)?

I hate to prolong this thread, but we need to stay rooted in facts.

   Brian

---

From: Eric Rescorla <[email-masked]>
Date: 20 Feb 2003 07:26:49 -0800

> that come to my mind, it didn't seem to make much of a difference in
Indeed. The story of the RSA patent is rather instructive in this
regard. In two cases (SSL and S/MIME), IETF was presented with protocols
that already had fairly widespread deployment with support for RSA [0]

SSL
SSLv2 supported only RSA. SSLv3 supported both RSA and DSS/DH but in
practice deployment was limited to RSA. The major commercial
implementations were all RSA-only and VeriSign only issued RSA
certificates. OpenSSL supported DH already. When TLS was standardized,
the IESG insisted that a DSS/DH-based cipher suited be mandatory to
implement with an RSA cipher suite optional.

No significant deployment of DH/DSS was seen. As I said, OpenSSL
already supported it, but it wasn't widely used. Eventually, Microsoft
added support for DH/DSS (sometime in mid 2000 IIRC). Netscape didn't
(though, ironically, they may have after the RSA patent expired). [1]
Currently, the TLS WG is planning to change the mandatory algorithm
back to RSA.

S/MIME
At the time that S/MIME was submitted to the IETF, it supported
RSA only. The WG went to quite a bit of effort to retrofit it
for DSS and DH (although algorithms were nominally substitutable,
in practice S/MIME had been designed for RSA). Once again,
DSS and DH were made mandatory. 

The effect was more or less the same as with SSL. The commercial
vendors largely ignored the requirement and stuck with RSA,
which was compatible with their installed base. The S/MIME WG
is now transitioning the mandatory algorithms back to RSA.

I'm not suggesting that one draw any general conclusions here.  It's
arguable that these protocols were a special case due to the fairly
wide installed base, short remaining term of the RSA patent, and
requirement to have certificates in a market dominated by
Verisign. However, in at least these two cases I think it's pretty
clear that the IETF tried to shift matters as far as possible [1]
towards RF technology--with extremely little success.

-Ekr

[0] Incidentally, this was pretty reasonable behavior on the
part of the protocol designers (Netscape and RSA independently).
At the time all of public key was allegedly patented and
the patents were all licensed together with that for RSA
by RSADSI, so it made sense to use RSA, which was technically
superior in a number of respects.

[1] I worked for a toolkit company at the time. We did add
a DH/DSS mode but I don't recall any customers actually using
it.

[2] I suppose one could argue that the IETF should have gone even
further and removed RSA entirely from the standards. Based on
vendor behavior, I think it's pretty clear that the result
would have been that the new versions were completely ignored.
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