Subject: ETSI patent licence rules

From: Brian E Carpenter <[email-masked]>
Date: Thu, 09 Feb 2012 12:23:48 +1300

If this list is still active, people might be interested:

http://www.bbc.co.uk/news/technology-16948544

Regards
   Brian Carpenter

---

From: Stephan Wenger <[email-masked]>
Date: Wed, 08 Feb 2012 15:50:42 -0800

In the same spirit:

http://www.scribd.com/doc/80976133/12-02-08-Google-to-IEEE-on-MMI-Patents
http://www.scribd.com/doc/80899178/11-11-11-Apple-Letter-to-ETSI-on-FRAND
http://www.microsoft.com/about/legal/en/us/IntellectualProperty/iplicensing
/ip2.aspx

I learned of all three from fosspatents.

Dare one believes that phone calls have been made?   :-)

On a more serious note, I recall that the spirit of these letters (perhaps
minus the one from google/MMI) seems somewhat similar to what was going on
in ETSI a few years ago (google, for MCOI).  MCOI was not going anywhere.
Interestingly enough, MMI was one of the staunch supporters of that
initiative.  

Stephan

On 2.8.2012 15:23 , "Brian E Carpenter" <[email-masked]>
wrote:

>_______________________________________________
>Ipr-wg mailing list
>[email-masked]
>https://www.ietf.org/mailman/listinfo/ipr-wg

---

From: Russ Housley <[email-masked]>
Date: Thu, 9 Feb 2012 13:41:08 -0500

I find this very interesting.

I have recently been approached by the in-house counsel from a very large vendor.  He wanted to know if the IETF would be willing to require royalty-free commitments for essential patents in standards-track RFCs.  I indicated that this was a significant change, and it is difficult to enforce on parties that do not participate in the standards making process.  This idea is taking the ideas that Apple suggests in this article even further.

Is there support for _any_ of these ideas?

Russ

---

From: Steven Bellovin <[email-masked]>
Date: Thu, 9 Feb 2012 13:47:03 -0500

> Is there support for _any_ of these ideas?

There was certainly some support in the IPR WG for that, back when we
adopted the current policies.  It would pay to reread the WG minutes and
the archives of the discussions.

		--Steve Bellovin, https://www.cs.columbia.edu/~smb

---

From: todd glassey <[email-masked]>
Date: Thu, 09 Feb 2012 10:49:45 -0800

> Is there support for _any_ of these ideas?

Yes of course since the IETF changed from a trailing edge practice to a
leading edge practice. But the real issue is what happens to parties
when they intentionally implement code or practices or for that matter
standards when proper IPR notices are already on file - especially those
which say "No IETF, you weasels don't get this IP for free"...

The real issue is whether there is damage beyond civil here. My take is
that the intent in this group is to create IP anarchy and it needs to be
spanked and spanked hard.

Todd

-- 
Todd S. Glassey
This is from my personal email account and any materials from this
account come with personal disclaimers.

Further I OPT OUT of any and all commercial emailings.

---

From: Marshall Eubanks <[email-masked]>
Date: Thu, 9 Feb 2012 13:51:48 -0500

> I have recently been approached by the in-house counsel from a very large vendor.  He wanted to know if the IETF would be willing to require royalty-free commitments for essential patents in standa…

I would like to see an actual proposal before I commented further. I
suspect that there would be some details here....

Regards
Marshall

---

From: John C Klensin <[email-masked]>
Date: Thu, 09 Feb 2012 13:54:32 -0500

--On Thursday, February 09, 2012 13:41 -0500 Russ Housley
<[email-masked]> wrote:

> I have recently been approached by the in-house counsel from a
> very large vendor.  He wanted to know if the IETF would be
> willing to require royalty-free commitments for essential
> patents in standards-track RFCs.  I indicated that this was a
> significant change, and it is difficult to enforce on parties
> that do not participate in the standards making process.  This
> idea is taking the ideas that Apple suggests in this article
> even further.
> 

Russ,

(strictly personal opinion...)

Remember the RSA issue and a few other things that contributed
to shaping IETF's current policy, I would be opposed to a change
that prevented something from moving forward on the standards
track unless it came with some particular form of license or
license commitment.  I think the ability of a WG to accept a
restricted/ encumbered technology if it sees the issue as
important and the technology as clearly superior to the
alternatives is one of our strengths.

On the other hand, I would see no problem and some advantages to
the IETF saying "we will permit any license you like as long as
you clearly disclose it but strongly prefer a royalty-free
commitment  for any essential patent(s) for anything on the
standards track".  If the IESG then decided to institutionalize
that preference by telling WGs that they would be required to
give a lot of scrutiny to anything more restrictive than that, I
wouldn't see that as a problem either.

All of that said, and with due respect to the Apple campaign, I
share what I think is Harald's view that licensing statements
that are so protective that the use of any IETF technology in
which a particular company has an interest effectively prevents
asserting any patent claim --for anything and of any type--
against that company is a more significant problem than whether
there is a royality-free commitment or not.  So, if we are going
to adopt a "preferred" licensing form, I'd like to see that
pushed toward, e.g., "no defensive provisions applicable to
anything other than other patents covered by the same standard".

    john

---

From: todd glassey <[email-masked]>
Date: Thu, 09 Feb 2012 11:01:17 -0800

On 2/9/2012 10:51 AM, Marshall Eubanks wrote:
>> I have recently been approached by the in-house counsel from a very large vendor. 

We need the name of the vendor here Russ... and now - no delays, no
games, no more IETF hidden-agenda meetings.

This private communications to the chair of a Global Standards Org is an
outrage as a corporate entity. It forms a commercial solicitation and
MUST be disclosed.

Sorry...

Todd

 He wanted to know if the IETF would be willing to require royalty-free
commitments for essential patents in standards-track RFCs.  I indicated
that this was a significant change, and it is difficult to enforce on
parties that do not participate in the standards making process.  This
idea is taking the ideas that Apple suggests in this article even further.

---

From: Russ Housley <[email-masked]>
Date: Thu, 9 Feb 2012 14:08:23 -0500

> From: todd glassey <[email-masked]>
> Date: February 9, 2012 2:01:17 PM EST
> To: Marshall Eubanks <[email-masked]>
> Cc: Russ Housley <[email-masked]>, [email-masked]
> Subject: Re: ETSI patent licence rules
> 

I do not agree with your assessment of the situation.

Russ

---

From: todd glassey <[email-masked]>
Date: Thu, 09 Feb 2012 11:10:56 -0800

> alternatives is one of our strengths.

The problem comes in the intentional design of technology which uses an
encumbered technology base or relies on materials which the IETF knows
are controlled and which will not be licensed under IETF acceptable terms.
> anything other than other patents covered by the same standard".

I agree to an extent. The real process should probably stop any WG
members initiative which is noticed as being tied to an existing IPR
disclosure unless the IETF wants to litigate that itself. What I mean is
that there is a constructive responsibility for IETF members to
do-no-damage and its a real one.

Todd

---

From: todd glassey <[email-masked]>
Date: Thu, 09 Feb 2012 11:19:55 -0800

> I do not agree with your assessment of the situation.

Bummer...  strongly suggest you have the IETF's counsel contact me on
this since I am about to file a formal complaint now.

This is NOT a joke Russ.

---

From: Scott Brim <[email-masked]>
Date: Thu, 9 Feb 2012 14:41:52 -0500

> the archives of the discussions.

"Support" certainly but there was enough pushback that the IETF
couldn't take responsibility for doing so.  It's a new world, one
could try again, but be sure that the IETF's mission is served, not
(just) a particular faction of participants.

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 10 Feb 2012 08:46:23 +1300

> (strictly personal opinion...)

Stricltly personal +1 to all of John's points.

    Brian

---

From: Steven Bellovin <[email-masked]>
Date: Thu, 9 Feb 2012 14:47:21 -0500

> (just) a particular faction of participants.
As I said, folks should read past discussions before resurrecting an idea
that was rejected way back when.  The world has changed a lot and old
answers may no longer be valid -- but they may be.

---

From: Donald Eastlake <[email-masked]>
Date: Thu, 9 Feb 2012 16:42:06 -0500

Or accept an encumbrance that will expire "soon" or ...

Donald

-- 
Thanks,
Donald
=============================
 Donald E. Eastlake 3rd   +1-508-333-2270 (cell)
 155 Beaver Street, Milford, MA 01757 USA
 [email-masked]

---

From: Scott Brim <[email-masked]>
Date: Thu, 9 Feb 2012 16:50:47 -0500

On Thu, Feb 9, 2012 at 13:54, John C Klensin <[email-masked]> wrote:
> standards track".

RFC 3979 section 8:

   In general, IETF working groups prefer technologies with no known IPR
   claims or, for technologies with claims against them, an offer of
   royalty-free licensing.  But IETF working groups have the discretion
   to adopt technology with a commitment of fair and non-discriminatory
   terms, or even with no licensing commitment, if they feel that this
   technology is superior enough to alternatives with fewer IPR claims
   or free licensing to outweigh the potential cost of the licenses.

---

From: todd glassey <[email-masked]>
Date: Thu, 09 Feb 2012 16:24:44 -0800

>    or free licensing to outweigh the potential cost of the licenses.

This fails to take into account us Law and Court precedent on
"intentionally infringing on anothers IP" and that is a serious issue.

The latest disclosure from the Chair about the clandestine meeting with
a formal legal representative of a major Sponsor is a serious issue.

It is clandestine because the content of that conversation and the
identity of the party is critical to maintaining open and disclosed
participation in any joint-development effort.

The really big problem is that the Chair for whatever reason “doesn’t
think it is out of line to have an ex parte meeting with a ‘legal
representative of a sponsor’ that is not formally disclosed to all other
interested and impacted parties.

>From a ethical standpoint this action and the cavalier attitude to its
importance is a key reason why this management team is incompetent to
run this “open and fair” Global Standards Organization and in this
refusal I formally challenge the Chair to disclose the document or
resign immediately since you will be taking a stance as the agent of
that ‘major sponsor’ and no longer be independent or accountable, but
rather serve as a partner for some undisclosed action.

I suggest this is a real problem and I call for a formal hearing before
the IESG as to the ethical standing of the Chair.

T.

---

From: John C Klensin <[email-masked]>
Date: Thu, 09 Feb 2012 19:54:16 -0500

--On Thursday, February 09, 2012 16:50 -0500 Scott Brim
<[email-masked]> wrote:

>> On the other hand, I would see no problem and some advantages
>> to the IETF saying "we will permit any license you like as
>> long as you clearly disclose it but strongly prefer a
>> royalty-free commitment  for any essential patent(s) for
>> anything on the standards track".
> 
> RFC 3979 section 8:
> 
>    In general, IETF working groups prefer technologies with no
> known IPR    claims or, for technologies with claims against
> them, an offer of    royalty-free licensing.  But IETF working
> groups have the discretion    to adopt technology with a
> commitment of fair and non-discriminatory    terms, or even
> with no licensing commitment, if they feel that this
> technology is superior enough to alternatives with fewer IPR
> claims    or free licensing to outweigh the potential cost of
> the licenses.

Yes, I know.  I think that is the right principle even though it
is possible that the language may be in need of tuning at this
stage.  The differences between the above and what I was
suggesting might be reasonable now were:

* More or less promising a WG that a certain cluster of terms
would cause the IESG to examine whether they had discussed the
licensing conditions and how they were likely to relate to
deployment and use and, conversely, more or less promising them
that anything else was likely to cause them to be forced to
document the fact that they had discussed the issue.  In
principle, our model today isn't far from that.  In practice...
well, the practice may not completely match the principle and
more clarity about this wouldn't be bad.

* While I believe the general principle was worth preserving, we
might consider tightening/narrowing the statement of preference
if that made sense now.

* And I'd like to start pushing back on reciprocal protective
clauses that are so broad that they could impede willingness to
use the technology.  In a way, that is no different from any
other encumbrance and the same rules should apply.  In practice,
we have tended to treat "FRAND as along as you promise to not
challenge any of our patents, IETF-related or not" as if it were
FRAND.   They are not the same -- and how different they are
depends on just what the supposedly-defensive reciprocity
provisions actually say.

    john

---

From: todd glassey <[email-masked]>
Date: Fri, 10 Feb 2012 08:33:51 -0800

> http://www.microsoft.com/about/legal/en/us/IntellectualProperty/iplicensing

Thanks Stephan, in the interest of disclosure and transparency I have
posted these as IPR Notices to the IPR List so that there is now formal
record in the IPR Disclosure tree of these official public policies.

Todd Glassey