Subject: Comments on draft-ietf-ipr-technology-rights-10.txt

From: Thomas Narten <[email-masked]>
Date: Thu, 31 Jul 2003 13:29:58 -0400

substantative (maybe):

>    i. "IETF Documents":  RFCs and Internet-Drafts except for Internet-
>       Drafts that are RFC Editor Contributions and the RFCs that are
>       published from them.

Note: We currently have no way of looking at an RFC and knowing
whether it is the result of an IETF activity or not. But the current
set of documents makes it clear that IPR disclosures apply to "IETF
documents". It is less clear they apply to "RFC Editor
Contributions". I.e., RFC Editor Contributions must first be submitted
as IDs (at which point IPR must be disclosed), but once the RFC is
published, there appears to be no such requirement anymore.  Seems
like this leaves things underspecified.  Two practical points:

1) Is someone who gets an RFC published via the RFC Editor
   Contribution route obligated to update the IETF (or anyone) about
   IPR once their document is a published RFC? (AFAIK, this is not
   clearly specified).

2) If known IPR is not required to be disclosed for RFCs in category
   1, but is for IETF-produced RFCs, it seems like we may need a way
   to identify which RFCs are IETF documents and which are not. How is
   this intended to be done? (E.g., maybe all future IETF RFCs should
   have a line along the lines "this document was produced by the IETF
   Foo Bar WG".)

new point:

In the definitions section, it might be good to define the term
"implementor" more formally, as the term is used in ipr-template and
I'm not sure *exactly* what it means. I.e., isn't the disributor of
software (who may not be the implementor) also subject to some issues
with regards to technology that has IPR associated with it?

Here is the one comment I had in reviewing draft-ietf-ipr-template-05.txt

>   a) ___   No License Required for Implementers 

 What is a definition of an implementor? is a separate distinction
 needed for a product that gets sold and shipped? I.e., it might be
 good to define implementor to also include "user", since it is not
 just implementors that are subject to IPR.

(back to draft-ietf-ipr-technology-rights-10.txt)

>    (D)  Where Intellectual Property Rights have been disclosed as
>       provided in Section 6 of this document, the IETF Executive
>       Director shall request from the discloser of such IPR, a written
>       assurance that upon approval by the IESG for publication as RFCs
>       of the relevant IETF specification(s), all persons will be able to
>       obtain the right to implement, use, distribute and exercise other
>       rights with respect to Implementing Technology under one of the
>       licensing options specified in Section 6.5 below unless such a
>       statement has already been submitted.  The working group proposing
>       the use of the technology with respect to which the Intellectual
>       Property Rights are disclosed may assist the IETF Executive
>       Director in this effort.

Note: the above seems to apply only to IETF contributions the way it
is written. I guess RFC editor contributions are funny. But, if the
submitter said there was IPR, is the secretariat supposed to do the
normal IPR query? Or is it explicitely not supposed to? 

> 5. Notice to be included in RFCs
> 
>    The RFC Editor will ensure that the following notice is present in
>    all standards track RFCs and all other RFCs for which an IPR
>    disclosure has been received.

Seems the above should apply not just to standards track, but to all
"IETF Contributions". Saying "standards track" above seems
inconsistent with other parts of this document.

To be clear, is the above wording intended to say the "disclaimer' is
not needed for IETF-produced info and experimental documents? I don't
understand why we would want to exclude those.

>    If a person has information about IPR that may Cover IETF
>    Contributions, and such IPR does not meet the conditions of Section
>    6.6 as to such person, such person is encouraged to notify the IETF
>    by sending an email message to [email-masked].  Such a notice
>    should be sent as soon as reasonably possible after the person
>    realizes the connection.

Don't understand what this is trying to say. Is this saying that if I
know about (relevant) IPR, but I'm not the IPR holder (maybe I work
for some other company), I do not have to disclose existance?

The above to me reads like there is IPR, someone knows about it, but
they don't have to disclose.

Maybe  my confusion stems from the "and such IPR does not meet the
conditions..." Its not just a question of the IPR meeting the
condition, it's whether the person who knows of the IPR is a
participant. Is the above trying to encourage non-participants to
disclose things they know about?

> 6.1.1  A Contributor's IPR in his or her Contribution
>    Any Contributor who reasonably and personally knows of IPR meeting
>    the conditions of Section 6.6 which the Contributor believes Covers
>    or may ultimately Cover his or her Contribution, or which the
>    Contributor reasonably and personally knows his or her employer or
>    sponsor may assert against Implementing Technologies based on such
>    Contribution, must make a disclosure in accordance with this Section
>    6.

does this include IPR for which there are internal discussions as to
whether to file, but no determination has yet been made? (I ask only
because this question comes up fairly  often in practice. It might be
good to have explicit wording about that.)

> 6.2.1 Timing of disclosure under Section 6.1.1
>    The IPR disclosure required pursuant to section 6.1.1 must be made as
>    soon as reasonably possible after the Contribution is published in an
>    Internet Draft unless the required disclosure is already on file.
>    For example, if the Contribution is an update to a Contribution for
>    which an IPR disclosure has already been made and the applicability
>    of the disclosure is not changed by the new Contribution, then no new
>    disclosure is required.  But if the Contribution is a new one, or is
>    one that changes an existing Contribution such that the revised
>    Contribution is no longer Covered by the disclosed IPR or would be
>    Covered by new or different IPR, then a disclosure must be made.
> 
>    Participants who realize that a Contribution will be or has been
>    incorporated into a submission to be published as an Internet Draft,
>    or is seriously being discussed in a working group are strongly
>    encouraged to make at least a preliminary disclosure.  That
>    disclosure should be made as soon after coming to the realization as
>    reasonably possible, not waiting until the document is actually
>    posted or ready for posting.

I read the above as saying someone who has knowledge that there is IPR
associated with X, can argue to the WG that they should use X without
disclosing the existance of IPR at the time they are arguing for
inclusion of the IPR. They only disclose if the technology gets
adopted. This would seem to violate the spirit of our rules, and I'd
like to be sure that wording matches the WG's intention. The above
clearly says one "should" make a "preliminary disclosure", but
"should" implies that there are times when it is reasonable not to. Do
people have examples in mind here that resulted in "should"
vs. "must"?

The above seems to be to conflict with the basic theme that if one
knows of IPR, and is making a Contribution, one is obligated to
disclose. And the above seems to significantly narrow the scope of
what one must disclose compared to 1.c.

It is specifically the first sentence quoted above that I have
difficulty with.

What is a "preliminary disclosure". Shouldn't we define the term to
make a bit more clear what is meant?

>    version number.  In addition, if the IETF Document includes multiple
>    parts and it is not reasonably apparent which part of such IETF
>    Document is alleged to be Covered by the IPR in question, it is
>    helpful if the discloser identifies the sections of the IETF Document
>    that are alleged to be so Covered.

Note: this basically means that for  large complicated documents, IPR
can be asserted for which the WG has no clue what part it covers. This
is problematical in practice. The wording "it is helpful if the
discloser identifies the sections" is fairly weak. (I understand that we
can't require identification to the degree of describing what the IPR
is, but the above wording allows an IPR holder to say nothing, and be
compliant. This can be problematic in practice.) Is this wording the
best the WG could do?

Section 6.4.2. should there be rules requiring (or suggesting?) that
the IESG to poll for updates? E.g., every N months? or, prior to
starting a document action Last Call? Note, I'm not sure about whether
this shoudl be formallized. I.e,. it might best be done via IESG
procedure, but not be required. The goal is to get the IPR info
updated a bit more often than it is now...

>    of a patent thereon.  If the patent has issued, then the new
>    disclosure must include the patent number and, if the claims of the
>    granted patent differ from those of the application in manner
>    material to the relevant IETF Contribution, it is helpful if such a
>    disclosure describes any differences in applicability to the IETF
>    Contribution.  If the patent application was abandoned, then the new
>    disclosure must explicitly withdraw any earlier disclosures based on
>    the application.

One can read the above as saying that if a patent is granted, but what
is covered is different from what was said to have been covered in a
previous disclosure, there is no obligation to clarify. The "it is
helpful" wording is not all that strong. Note: I would assume that a
new/updated disclosure would replace the previous one and should stand
on its own, so I'm not sure if any special words are really
needed. Perhaps some  wording along the lines of the following would help:

   The new disclosure will be considered to replace and obsolete any
   previous disclosure and must be consistent with all of the
   disclosure rules described in this document.

> 6.4.3  The requirement for an IPR disclosure is not satisfied by the
>    submission of a blanket statement of possible IPR on every
>    Contribution.  This is the case because the aim of the disclosure
>    requirement is to provide information about specific IPR against
>    specific technology under discussion in the IETF.  The requirement is
>    also not satisfied by a blanket statement of willingness to license
>    all potential IPR under fair and non-discriminatory terms for the
>    same reason.  However, the requirement for an IPR disclosure is
>    satisfied by a blanket statement of the IPR discloser's willingness
>    to license all of its potential IPR meeting the requirements of
>    Section 6.6 (and either Section 6.1.1 or 6.1.2) to implementers of an
>    IETF specification on a royalty-free basis and other reasonable and
>    non- discriminatory terms.

The text after the "however" struck be as odd when I first read it. 

I assume the last sentence is intended to mean, if one is willing to
license royalty-free, a blanket statement to that effect is sufficient
and that such an IPR holder is no longer under any obligation to
disclose which technology any IPR applies to. Is this the correct
intent?

Nits:
      in regards to IETF Internet- Drafts as specified in this document

s/Internet- Drafts/Internet-Drafts/

>    n. "IPR" or "Intellectual Property Rights": means patent, copyright,
>       utility, model, invention registration, database and data rights
>       that may Cover an Implementing Technology, whether such rights
>       arise from a registration or renewal thereof, or an application
>       therefore, in each case anywhere in the world.

Not really sure what this text means, especially the "database and
data rights" stuff. Where does this come from? 

Move paragraph n. to after p. since n.  uses terms defined immediately
thereafter...

>    (c) in order for the working group and the rest of the IETF to have
>       the information needed to make an informed decision about the use
>       of a particular technology, all those contributing to the working
>       group's discussions must disclose the existence of any IPR the
>       Contributor believes Covers or may ultimately Cover the technology
>       under discussion.  This applies to both contributors and other
>       participants, and applies whether they contribute in person, via
>       email or by other means.  The requirement applies to all IPR of
>       the Contributor, the Contributor's employer, sponsor, or others
>       represented by the Contributors, that is reasonably and personally
>       known to the person submitting the disclosure.  No patent search
>       is required.

above, "Contributor" is used, but that term includes "RFC
Contributions", which I believe is not appropriate here. Or is it?

Also, what is a "other participant", since in the note well,
participants basically make contributions. So aren't they all just
contributors?  What is the definition of a participant? If participant
is different than contributor, it might be good to explain why. Or
just us the term "Contributor" exclusively.

>      require that the document includes a note indicating the existence

s/includes/include/

>    (A)  When any Intellectual Property Right is disclosed before
>       publication as a RFC, with respect to any technology,
>       specification, or standard described in an IETF Document in the
>       manner set forth in Section 6 of this document, the IESG shall

The text:

   "... with respect to any technology, specification, or
       standard described in an.. "

Is slightly different in (A), (B), and (C). Is this significant? It
would seem to me to be better if the same words were used for
consistency. (I'm not sure which wording is best, or intended...)

>    (B)  When any Intellectual Property Right is disclosed before
>       publication as a RFC, with respect to any technology,
>       specification described in an RFC Editor Document in the manner

s/any technology, specification/any technology or specification/ (this
text seems to be an editted version of the previous paragraph and
could flow better.

s/RFC Editor Document/RFC Editor Contribution/

>    Draft Standard have been produced by different organizations or
>    individuals, or if the "significant implementation and successful
>    operational experience" required to advance from Draft Standard to

Would be good to include a reference to the document and section where
the above text is quoted?

>       Copies of IPR disclosures made to the IETF Secretariat and any
>       assurances of licenses to be made available, or the result of an
>       attempt made to obtain a general license or permission for the use
>       of such proprietary rights by implementers or users of this
>       specification can be obtained from the IETF on-line IPR repository
>       at http://www.ietf.org/ipr/.

I note the use of the word "or user" above. This word doesn't appear
in ipr-template, and I wonder if it should. (This comment also relates
to the one about whether we might want to define "implementor" better,
and maybe have that term include "user").

> 6.3  How must a disclosure be made?
>    IPR disclosures are made by following the instructions at
>    http://www.ietf.org/ipr-instructions.

Might be better to just use one URL in this document for all
references to the IPR page, e.g., http://www.ietf.org/ipr

>   specific IETF or RFC Editor Documents or activity affected.  If the

s/Documents/Document(s)/

> 6.4.2  If a disclosure was made on the basis of a patent application
>    (either published or unpublished), then, if requested to do so by the
>    IESG or by a working group chair, the IETF Executive Director can
>    request a new disclosure indicating whether any of the following has
>    occurred:  the publication of a previously unpublished patent
>    application, the abandonment of the application and/or the issuance

s/abandonment/abandonment or rejection/

> 6.6  When is a disclosure required?
>    IPR disclosures under Sections 6.1.1. and 6.1.2 are required with
>    respect to IPR that is owned directly or indirectly, by the
>    individual or his/her employer or sponsor (if any) or that such
>    persons otherwise have the right to license or assert.

This section, especially coming at the end of section 6, doesn't seem
to contain any information not covered elsewhere in a lot more
detail. Perhaps delete?

>    of patent applications or other IPR.  Since disclosure is required
>    for anyone submitting documents or participating in IETF discussions,

Better to say "is required for anyone making an IETF Contribution..."?

> 9.  Change control for technologies
> 
>    The IETF must have change control over the technology described in
>    any standards track IETF Documents in order to fix problems that may
>    be discovered or to produce other derivative works.  Contributions to

Change control of the technologies, or over the documentation of such
technologies? I assume the latter. If so, the wording might be made
more precise

Also, here again we have "standards track documents" rather than just
all IETF documents (I assume the latter is meant).

>    Note that an standards track IETF Document can make normative
>    reference to proprietary technology in some cases, for example, when
>    making parameter assignments or encapsulations (e.g., "parameter
>    value 1234 refers to proprietary technology A" or "proprietary
>    technology B can be encapsulated using the techniques described in
>    RFC XYZ.")

While I don't necessarily disagree with the words, this text seems
somewhat out of place in this document. I.e, this seems to be a
change to the "normative" language of 2026. Is it? Is this the right
place to do so? 

Thomas

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---

From: Scott Bradner <[email-masked]>
Date: Thu, 31 Jul 2003 20:03:10 -0400 (EDT)

thomas has many comments - I'll respond to them off and on
as I review them

the 1st one

> change to the "normative" language of 2026. Is it? Is this the right

1/ since this issue has come up many times in the past I think it needs
to be somewhate in one of the defining RFCs (i.e. not in a descriptive RFC
like the WG guidelines

2/ it is not a change to the normative refence rule in 2026 - it is
an explanation of how assigning a codepoint (for example) does not
require a normative refence to where the technology that will
use the codepoint is defined - this is how we have been operating for
many years

Scott

---

From: Thomas Narten <[email-masked]>
Date: Thu, 31 Jul 2003 22:00:56 -0400

Hi Scott.

Please feel free to change subject headings when responding to
individual points. That will make it a bit easier for folks to follow.

> to be somewhate in one of the defining RFCs (i.e. not in a descriptive RFC

Which issue? The issue of whether a standards track document can
normatively reference proprietary technology? (I agree that such
references are allowed.)

> use the codepoint is defined - this is how we have been operating for

If the codepoint example _isn't_ normative, then I don't understand
the quoted text in the document, which cites codepoints as an example
of where such a normative reference might be appropriate.

If the point is just to make it clear that Standard Track documents
can reference encumbered technology, I agree that this document is an
OK place to say that. (I could also try to suggest better wording, but
I first need to understand what is intended.)

Thomas

---

From: Scott Bradner <[email-masked]>
Date: Thu, 31 Jul 2003 22:15:43 -0400 (EDT)

> normatively reference proprietary technology? (I agree that such

yes - that issue
I have gotten this question every year or so for the past 6 years

> I first need to understand what is intended.)

yes - that is what is intended
plese do send better words if the current ones are confusing

Scott