Subject: Comments on draft-ietf-ipr-technology-rights-01.txt

From: "Joe Zebarth" <[email-masked]>
Date: Tue, 25 Feb 2003 17:04:35 -0500

Comments on draft-ietf-ipr-technology-rights-01.txt

The following comments are offered for your consideration with respect to
the aforementioned document.

General Comments

1	This document was intended to clarify section 10 of BCP 9, RFC 2026
and as a result, it should not change the IPR policy of 2026.  As a result
all statements in the document which contradict the IPR policy of 2026
should be stricken from this document.

2	The document seems to confuse the subject of IPR disclosure, IPR
claims, and IPR claimed rights.

3	The document does not clarify the merit of having blanket statements
of willingness to license essential IPR under fair and non-discriminatory
terms which are complemented by subsequent IPR disclosures.

4	It would appear that an attempt is being made to place unnecessary
obligations on all IETF participants.  Text which attempts to place such
burdens on IETF participants should be stricken from this document. 

5	While it is suggested that the intent of this work is to clarify
"ambiguities", identification of "ambiguous text" in RFC 2026 has not been
clearly identified or pointed to.

6	While it is stated that "in some cases IPR claims can be
disingenuous and made to affect the standards process", the current text
appears to aggravate this occurrence, if any.  

Specific Comments

1 	Abstract Page 1, last two sentences

The 2nd last sentence states " This memo details the IETF policies
concerning IPR related to technology worked on within the IETF." while the
last sentence of the 2nd last paragraph on Page 2 states "The aim of this
document is to clarify various ambiguities in Section 10 of [RFC 2026] that
led to these debates and to amplify the policy in order to clarify what the
IETF is, or should be, doing.".

This text should be aligned and the exact relationship to RFC 2026 should be
stated.  For example is 2026 still the definitive text and this is only
amplification, i.e. expanded description but not scope?  If this is the
case, then all of the RFC 2026 text should be removed from this document.  

2	It is suggested that the text in the Introduction be reordered to
improve readability and remove inconsistencies.  For example the first
sentence of Section 1 indicates that working groups have to deal with claims
while the second sentence indicates that these claims may only surface after
the working group is disbanded?

The suggested reordering and minor rewording is as follows (Note that added
text is not italicized.)

"In the years since RFC 2026 was published there have been a number of times
when the exact intent of Section 10, the section which deals with IPR
disclosures or claimed rights, has been the subject of vigorous debate
within the IETF community.  This is because it is becoming increasingly
common for IETF working groups to have to deal with claims of intellectual
property rights (IPR), such as patent rights, with regards to technology
under discussion in the working group.  The aim of this ID is to clarify
various ambiguities in Section 10 of [RFC 2026] that led to these debates
and to amplify the policy in order to clarify what the IETF is, or should
be, doing.

IPR claims can: come at any point in the IETF process e.g. before the first
Internet Draft has been submitted, prior to RFC publication, or after an RFC
has been published and the working group has been closed down; come from
people submitting technical proposals as Internet Drafts, on mailing lists
or at meetings, from other people participating in the working group or from
3rd parties who find out that the work is going or has gone on; be based on
granted patents or on patent applications, and in some cases be
disingenuous, i.e. made to affect the standards process rather than to
inform.

3	Page 2, 2nd last line

It is proposed that the word "substantially" be removed.  It has been stated
earlier that issuance of this document is to "amplify" the policy of RFC
2026.  Now, "amplify" is an ambiguous word.  It can mean "make bigger or
extend" or it can mean "to expand stating or describing as by details".  It
is my understanding that it is the latter, and as a result, the word
substantially should be removed.

4	Page 3, Section 2.2.1 Para 1, 3rd last line

The words "and any known owner of any intellectual property rights in the
contribution." should be stricken as a party normally cannot make this
representation.  This is placing an unnecessary and unacceptable obligation
on the person making the submission.

5	Page 4, Section 2.2.1 item B.

The IETF is attempting to place an obligation on a participant that the
participant has no authority to assume.  This text should be stricken.

6	Page 4, Section 3, Item c, 

	The text that reads as "all persons will be able to obtain the right
to implement, use, distribute and exercise other rights with respect to an
Implementing Technology under openly specified, reasonable,
non-discriminatory terms unless such a statement has already been
submitted." goes beyond the ability to practice the standard.  The text
should limit itself to obtaining the right to practice the standard.

7	Page 4, Section 3.1 Line 1

	The word "implicit" should be added so that the text reads as "The
IESG will not make any implicit or explicit determination..." 

8	Page 5, Section 4, Item A), Para 2, line 1

	The text "Copies of claims" should read as "Copies of IPR
statements"

9	Page 6, Definitions 5.1 and 5.2

It would seem to make sense that these definitions appear here as they are
not substantial, from a text/space point of view.  Besides, in the RFC SUB
contribution the definition is explicitly defined as being only in the
context of RFC SUB, and thus would by implication means that the definition
does not apply to this ID.

10	Page 6, Section 6.1.1, Para 1

	This paragraph should indicate that the disclosure should be made to
the IESG secretary. 

11	Page 6, Section 6.1.1, Para 3, last line on the page

	This text should be made more explicit to limit it to essential IPR.

12 	Page 7, Section 6.1.2, Para 1

As a fundamental rule participants should not be made to be responsible for
others actions or inaction or insisting that they make a patent analysis on
others IPR.  This text attempts to unnecessarily place this burden of
responsibility on participants.  Note that the IETF and IESG will not
obligate themselves to assume such a responsibility.

13	Page 7, Section 6.1.3, 1st line

I believe it is section 4(B) that should be referenced.

14	Page 7, Section 6.2, Para 1

The focus of the IETF should be the development of specifications.  The
current text appears to provide a bias against member innovation and
protection.  

15	Page 7, Section 6.2.1, Para 1

	Should use "IPR disclosure" consistently with RFC 2026 language in
this paragraph instead of IPR claims (global change required).  Use of the
words "encouraged" which appear in Section 4 (B) and in RFC 2026 should be
used consistently within this document; the wording in Section 6.2
contradicts.   

Should include or reiterate the statement that indicates that it is based on
awareness and that there is no obligation for portfolio searches.

16	Page 7, Section 6.2.3 Para 1, line 3

	The words "relevant patent" should be modified to read as "essential
patent" (Global change required)

17	Page 8, Section 6.3, Para 1, 

	In the first sentence "IPR claims" should be modified to read as
"IPR disclosures" to be consistent with RFC 2026. (Global change required) 

The second sentence should be deleted.

18	Page 8, Section 6.4, Para 1, 2nd last line

Probably the words "and what sections of any documents are affected" should
be deleted.  While the spirit of the intent may be correct, having such
words would require a new disclosure after any of the referenced documents
are revised with a section number change.  Failure for replacement
disclosures that keep current alignment would soon be disclosing IPR on
sections for which no real IPR claim was being made!  Additionally, such a
requirement is too onerous.

19	Page 8, Section 6.4, Para 1, last line

In response to the questions, "Should we put up a disclosure template?", the
response is "No".

20	Page 8, Section 6.4, Para 2

As written, this note fails to recognize the value of blanket statements
which can provide value.  It should then go on to indicate that
supplementation is appropriate.

21	Page 8, Section 6.5 Para 2

The text of this paragraph and the examples should be stricken because it is
not appropriate in that the purpose of this document was to clarify RFC
2026. 

22	Page 9, Section 6.6, Para 1

Replace the first paragraph with the following sentence "Disclosures are
triggered when there exists, or may exist, essential IPR to the practice of
an IETF standard." which is consistent with RFC 2026.

24	Page 9, Section 7, Para 1, Sentence 2

	These words are too subjective to be meaningful.  In particular the
words "would be reasonably be expected to know" should as a minimum be
stricken, in that they are contradictory to RFC 2026.

25	Page 9, Section 8

	Early disclosure is requested and it does not represent a threshold
of failure.  The text should be modified to become less adversarial.

26	Page 10, Para 1

	This text promotes disclosure of relevant IPR.  What is relevant is
highly subjective and better text should be found.  Further, the requirement
to disclose relevant IPR without proper guidance will tend to support and
promote the submission of disingenuous IPR claims.  As stated earlier, the
language should refer to "essential IPR" with a view towards practice in
IETF standards.

Dept. 6L40
ATI Strategic Standards
Nortel Networks (Canada)
Phone: +1 613 765 8481
ESN:    6+395 8481
Fax:     +1 613 763 2697
ESN:    6+393 2697
http://www.nortelnetworks.com

---

From: "Contreras, Jorge" <[email-masked]>
Date: Wed, 26 Feb 2003 11:05:18 -0500

-----Original Message-----
From: Scott W Brim [mailto:[email-masked]]
Sent: Wednesday, February 26, 2003 10:35 AM
To: [email-masked]
Subject: Re: Comments on draft-ietf-ipr-technology-rights-01.txt

On Wed, Feb 26, 2003 04:19:33PM +0100, Malin Gullstrand (EAB) allegedly wrote:
> >However, unasserted claims are not relevant to the IETF, whether they
> >are protected or not.  The IETF cannot take into account claims that
> >might be made at some future time.
> 
> This is great news. I hope we can all agree on this? 

Unless the lawyers point out some flaw in the logic.

JLC> I think we're talking about 2 different types of "claims".  I think that Malin is referring to "patent claims", and Scott is referring to "legal claims" (as in assertions of rights).  All patent claims are relevant to IETF, whether they are asserted or not, so long as the contributor, etc. has personal knowledge of them.  Patent claims do not need to be asserted (i.e., the subject of a demand letter or infringement notice) to be subject to an obligation to disclose.  That being said, I'm not sure whether there is any change to the document that stems from this discussion...

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