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

From: "Malin Gullstrand (EAB)" <[email-masked]>
Date: Wed, 26 Feb 2003 16:05:13 +0100

As for me personally, the "claim" approach is fine, but there's a snag: 

You can add claims later on, according to both US and EP law, as long as the subject matter is featured in some detail in the priority application, e.g. in the decription, figures, or elsewhere. Hence you have "protection" from your priority date for something that you might not "claim" until later on. You can even hand in a provisional application in complete destitute of anything similar to a claim. 

Being the engineers we are, we want unambiguous descriptions and mathematical definitions, 
In this case the only way of being that meticulous is to notify only a granted patent 
or an established infringement - which for me personally would also be OK. 

Best Regards, 
Malin

-----Original Message-----
From: Scott W Brim [mailto:[email-masked]]
Sent: den 26 februari 2003 15:35
To: Malin Gullstrand (EAB)
Cc: [email-masked]; [email-masked]'
Subject: Re: Comments on draft-ietf-ipr-technology-rights-01.txt

On Wed, Feb 26, 2003 11:37:06AM +0100, Malin Gullstrand (EAB) allegedly
wrote:
> There is a not so limited possibility of retroactive liability, and a
> filed application is certainly a protection, unpublished or not, e.g.
> against later filed applications according to the EPC - European
> Patent Convention.  IPR includes everything from copyright to priority
> date of an unpublished patent application, hence my suggestion.  IETF
> is not merely concerned with granted patents or established
> infringement which is what complicates matters.  Champions for an
> over-explicit document might consider a change of notification
> criteria to these two clearly defined cases.

Regarding "claimed" versus "protected": 

Yes, I used "protected" myself for a while in the WG Guidelines draft
but I changed it all to "claimed" in the new version.  

First I believe protection is not the issue the IETF cares about.
Second (if that is not enough) in my opinion no intellectual property
claim can be said to actually be "protected".

First: the IETF very carefully makes no judgment about whether an
assertion of intellectual property rights (whether patent, copyright, or
anything) is valid or not.  All we care about is that there is such an
assertion -- such a claim.  Therefore our policies and procedures should
address just claims.  Claims are statements that rights exist.  They may
be true or false, there may be "protection" or not, and we don't care or
need to care.

Second: intellectual property is "protected" in the sense that rights
are granted, but we have seen that those rights can be challenged at any
time, and the holder of those rights must defend them.  No one helps you
-- no one protects you.  I don't know what "protected" might mean in
some legal systems, but I do know what "claim" means.

For a while I tried "assertion" but "claim" worked better for aesthetic
reasons.

..Scott
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---

From: Scott W Brim <[email-masked]>
Date: Wed, 26 Feb 2003 10:24:00 -0500

On Wed, Feb 26, 2003 04:05:13PM +0100, Malin Gullstrand (EAB) allegedly
wrote:
> You can add claims later on, according to both US and EP law, as long
> as the subject matter is featured in some detail in the priority
> application, e.g. in the decription, figures, or elsewhere. Hence you
> have "protection" from your priority date for something that you might
> not "claim" until later on. You can even hand in a provisional
> application in complete destitute of anything similar to a claim. 

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.