Subject: Fwd: New Version Notification for draft-bradner-rfc3979bis-04.txt

From: Jorge Contreras <[email-masked]>
Date: Mon, 8 Apr 2013 21:57:06 -0400

All -- a new draft v4 of BCP79bis has just been released (see below).  In
this draft, we attempted to reflect the outcome of the BOF in Orlando:

1.c - removed "claims" from reference to provisional patents

1.k - overhauled "participation" definition to indicate that in-person
attendance at an IETF session is "participation" in the session.  Sending a
message to a mailing list is participation in that discussion, but merely
subscribing to or getting messages from an email list does NOT constitute
participation (i.e., no IPR disclosure required if you just lurk on a list).

5.4.2.B - carry-over comment from pre-BOF: removed references to "foreign"
patent counterparts to avoid over-emphasis of US patent.

Two other substantive suggestions were raised after the BOF, and we thought
it would be best to have a further list discussion of them before including
them in a draft:

>From Harald Alvestrand:  is an IPR disclosure required for a normative
reference within a Contribution?  i.e., Adam submits an I-D that
normatively references IEEE standard X.  Adam knows of patents that his
company has covering X.  These patents may or may not have been disclosed
previously in an IEEE Letter of Assurance.  Does Adam need to make an IETF
IPR disclosure of patents covering IEEE X?

>From Stephan Wegner:  should IETF require that patents covering IETF
standards be licensed, at a minimum, on fair, reasonable and
non-discriminatory (FRAND) terms?  Currently there is no licensing
obligation whatsoever at IETF.  This makes it difficult to reference IETF
standards in other SDOs.  Having a "FRAND minimum" commitment would help
diffusion of IETF standards, and, for all practical purposes, is already
the practice at IETF (just not formally required).

We look forward to more discussion!

Jorge and Scott

---------- Forwarded message ----------
From: <[email-masked]>
Date: Mon, Apr 8, 2013 at 9:32 PM
Subject: New Version Notification for draft-bradner-rfc3979bis-04.txt
To: [email-masked]
Cc: [email-masked]

A new version of I-D, draft-bradner-rfc3979bis-04.txt
has been successfully submitted by Scott Bradner and posted to the
IETF repository.

Filename:        draft-bradner-rfc3979bis
Revision:        04
Title:           Intellectual Property Rights in IETF Technology
Creation date:   2013-04-08
Group:           Individual Submission
Number of pages: 18
URL:
http://www.ietf.org/internet-drafts/draft-bradner-rfc3979bis-04.txt
Status:          http://datatracker.ietf.org/doc/draft-bradner-rfc3979bis
Htmlized:        http://tools.ietf.org/html/draft-bradner-rfc3979bis-04
Diff:
http://www.ietf.org/rfcdiff?url2=draft-bradner-rfc3979bis-04

Abstract:
   The IETF policies about Intellectual Property Rights (IPR), such as
   patent rights, relative to technologies developed in the IETF are
   designed to ensure that IETF working groups and participants have as
   much information about any IPR constraints on a technical proposal as
   possible.  The policies are intended to benefit the Internet
   community and the public at large, while respecting the legitimate
   rights of IPR holders.  This memo details the IETF policies
   concerning IPR related to technology worked on within the IETF.  It
   also describes the objectives that the policies are designed to meet.
   This memo updates RFC 2026 and obsoletes RFC 3979 and RFC 4879.

The IETF Secretariat

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 09 Apr 2013 08:17:53 +0100

> IPR disclosure of patents covering IEEE X?

My instinct is that this would lead to complications, and we'd do
better to keep our disclosure rules orthogonal to everybody else's.
What we should do for sure is document a strong 'caveat': a normative
reference to an external specification does not convey any information
about possible IPR associated with that specification.

  Brian

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 09 Apr 2013 08:22:31 +0100

> the practice at IETF (just not formally required).

I'm all for FRAND but I am against this change. The current policy
delegates the decision to each individual specification - is it better
to pick a particular technology, all things considered, including what
is known about licensing? That flexibility is valuable. "For all
practical purposes" is fine.

    Brian

---

From: Carsten Bormann <[email-masked]>
Date: Tue, 9 Apr 2013 09:25:08 +0200

Well, what if you have a patent claim that does not cover X per se, but the use of X in the context of the technology the contribution you are making is about?

Grüße, Carsten

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 09 Apr 2013 08:35:35 +0100

> Well, what if you have a patent claim that does not cover X per se, but the use of X in the context of the technology the contribution you are making is about?

IANAL, but perhaps the rule should be "When in doubt, disclose."

   Brian

---

From: tsg <[email-masked]>
Date: Tue, 09 Apr 2013 07:42:51 -0700

On 04/09/2013 12:22 AM, Brian E Carpenter wrote:
>> obligation whatsoever at IETF.
yes and to put it in place would be tortuous interference in my opinion.
>> This makes it difficult to reference IETF
No actually what it will do is get the IETF into court faster...

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

---

From: Ted Hardie <[email-masked]>
Date: Tue, 9 Apr 2013 08:08:48 -0700

On Tue, Apr 9, 2013 at 12:35 AM, Brian E Carpenter <
[email-masked]> wrote:

> > Well, what if you have a patent claim that does not cover X per se, but
> the use of X in the context of the technology the contribution you are
> making is about?
>

While I strongly agree with the sentiment "When in doubt, disclose", it
would be handy if the rules helped people with their doubts.

The two points of view seem to me have two very different starting points.
One starting point is "The IETF disclosures should tell you about any IPR
the participants believed covered what you need to implement the technology
described."  and the other is "The IETF disclosures should tell you about
any IPR the participants believed covers the technology developed within
the IETF contexts."

Is that a fair summary of the starting points of discussion, from others'
points of view?

Ted

---

From: Stephan Wenger <[email-masked]>
Date: Tue, 9 Apr 2013 15:36:18 +0000

Hi Brian,

>practical purposes" is fine.

I have pointed out two concrete, real world examples where "that
flexibility" not only could be, but actually *was* unhelpful and not
valuable.  Can you point me to one where it has been valuable?

Thanks,
Stephan

---

From: tsg <[email-masked]>
Date: Tue, 09 Apr 2013 08:44:41 -0700

On 04/09/2013 08:08 AM, Ted Hardie wrote:
> On Tue, Apr 9, 2013 at 12:35 AM, Brian E Carpenter 
> <[email-masked] <mailto:[email-masked]>> wrote:
>
>     > Well, what if you have a patent claim that does not cover X per
>     se, but the use of X in the context of the technology the
>     contribution you are making is about?
>
> While I strongly agree with the sentiment "When in doubt, disclose", 
> it would be handy if the rules helped people with their doubts.
>
> The two points of view seem to me have two very different starting 
> points.  One starting point is "The IETF disclosures should tell you 
> about any IPR the participants believed covered what you need to 
> implement the technology described." and the other is "The IETF 
> disclosures should tell you about any IPR the participants believed 
> covers the technology developed within the IETF contexts."
>
> Is that a fair summary of the starting points of discussion, from 
> others' points of view?

No - putting any rules for disclosure at any specified level works until 
that level is undefined as this is.

  The IETF - if it addresses disclosure at all must use "MUST language" 
or be ready to be sued for damages when more of the patent woes game 
happens inside this august community. The legally ambiguous term of 
SHOULD is unacceptable in contracts for IP...

Todd

---

From: Michael Cameron <[email-masked]>
Date: Tue, 9 Apr 2013 17:12:08 +0000

Jorge and Scott, thanks for your work in revising BCP79.  I have a question regarding 1.k.  I would think that passively attending a WG session is equivalent to lurking on a list.  If the purppse of the policy is to make sure that those who are guiding a WG toward a specific solution disclose their IPR, then just passively sitting in a WG should not give rise to an IPR disclosure obligation.  Here is my concern, go to any WG, and you will see 95% of the audience on their laptops, tablets, etc., totally oblivious to what is then going on (they may be waiting for a topic of interest to be raised). Yet the blue sheet goes around only once (not topic by topic). So, even though most of the people who are there are not really "there" mentally, they now have an IPR disclosure obligation. My fear is that the Ciscos, Junipers, Qualcomms, Ericsson's etc of the world may have to tell their engineers to avoid any WG session in which they are not paying close attention throughout the entire session.  In light of the foregoing, I would propose 1.k be amended as follows:

k. "Participating in an IETF discussion or activity": means making a Contribution, as described above, or in any other way acting in order to influence the outcome of a discussion relating to the IETF Standards Process.  Without limiting the generality of the foregoing, actively commenting or contributing in a session at a live IETF meeting on a particular topic is deemed to mean participating in the session with respect to that topic, sending a message to an email list is deemed to constitute participating in the associated email discussion for its entire duration and any successor email discussions.  Likewise, simply subscribing to or reading messages received from an IETF email list does not constitute participation in the relevant IETF discussion.

Best regards, Mike Cameron

________________________________
From: [email-masked] [mailto:[email-masked]] On Behalf Of Jorge Contreras
Sent: Monday, April 08, 2013 8:57 PM
To: [email-masked]
Subject: Fwd: New Version Notification for draft-bradner-rfc3979bis-04.txt

All -- a new draft v4 of BCP79bis has just been released (see below).  In this draft, we attempted to reflect the outcome of the BOF in Orlando:

1.k - overhauled "participation" definition to indicate that in-person attendance at an IETF session is "participation" in the session.  Sending a message to a mailing list is participation in that discussion, but merely subscribing to or getting messages from an email list does NOT constitute participation (i.e., no IPR disclosure required if you just lurk on a list).

5.4.2.B - carry-over comment from pre-BOF: removed references to "foreign" patent counterparts to avoid over-emphasis of US patent.

Two other substantive suggestions were raised after the BOF, and we thought it would be best to have a further list discussion of them before including them in a draft:

>From Harald Alvestrand:  is an IPR disclosure required for a normative reference within a Contribution?  i.e., Adam submits an I-D that normatively references IEEE standard X.  Adam knows of patents that his company has covering X.  These patents may or may not have been disclosed previously in an IEEE Letter of Assurance.  Does Adam need to make an IETF IPR disclosure of patents covering IEEE X?

>From Stephan Wegner:  should IETF require that patents covering IETF standards be licensed, at a minimum, on fair, reasonable and non-discriminatory (FRAND) terms?  Currently there is no licensing obligation whatsoever at IETF.  This makes it difficult to reference IETF standards in other SDOs.  Having a "FRAND minimum" commitment would help diffusion of IETF standards, and, for all practical purposes, is already the practice at IETF (just not formally required).

Jorge and Scott

---------- Forwarded message ----------
From: <[email-masked]<mailto:[email-masked]>>
Date: Mon, Apr 8, 2013 at 9:32 PM
Subject: New Version Notification for draft-bradner-rfc3979bis-04.txt
To: [email-masked]<mailto:[email-masked]>
Cc: [email-masked]<mailto:[email-masked]>

Filename:        draft-bradner-rfc3979bis
Revision:        04
Title:           Intellectual Property Rights in IETF Technology
Creation date:   2013-04-08
Group:           Individual Submission
Number of pages: 18
URL:             http://www.ietf.org/internet-drafts/draft-bradner-rfc3979bis-04.txt
Status:          http://datatracker.ietf.org/doc/draft-bradner-rfc3979bis
Htmlized:        http://tools.ietf.org/html/draft-bradner-rfc3979bis-04
Diff:            http://www.ietf.org/rfcdiff?url2=draft-bradner-rfc3979bis-04

Abstract:

The IETF Secretariat

---

From: SM <[email-masked]>
Date: Tue, 09 Apr 2013 09:49:44 -0700

Hi Ted,
>covers the technology developed within the IETF contexts."

Thanks for attempting to summarize the points.  Although the 
normative reference question is relevant I think that it looks at the 
issue from an incorrect angle.  I would simplify the question as follows:

   Does the contribution cover any Implementing Technology which 
would require an
   IPR disclosure? [1]

The question of whether the reference is normative or informative, or 
whether the document references a technology developed outside an 
IETF context can be side-stepped.

BTW, the audience for draft-bradner-rfc3979bis-04 is also IETF 
participants.  Some people will not understand the question being 
asked if it is not simplified.

Regards,
-sm

1. I did not try to come up with a properly phrased question.

---

From: tsg <[email-masked]>
Date: Tue, 09 Apr 2013 12:11:48 -0700

On 04/09/2013 10:12 AM, Michael Cameron wrote:
> Jorge and Scott, thanks for your work in revising BCP79.  I have a 
> question regarding 1.k.  I would think that passively attending a WG 
> session is equivalent to lurking on a list.  If the purppse of the 
> policy is to make sure that those who are guiding a WG toward a 
> specific solution disclose their IPR, then just passively sitting in a 
> WG should not give rise to an IPR disclosure obligation.  Here is my 
> concern, go to any WG, and you will see 95% of the audience on their 
> laptops, tablets, etc., totally oblivious to what is then going on 
> (they may be waiting for a topic of interest to be raised). Yet the 
> blue sheet goes around only once (not topic by topic). So, even 
> though most of the people who are there are not really "there" 
> mentally, they now have an IPR disclosure obligation. My fear is that 
> the Ciscos, Junipers, Qualcomms, Ericsson's etc of the world may have 
> to tell their engineers to avoid any WG session in which they are not 
> paying close attention throughout the entire session.  In light of the 
> foregoing, I would propose 1.k be amended as follows:
> k. "Participating in an IETF discussion or activity": means making 
> aContribution, as described above, or in any other way acting inorder 
> to influence the outcome of a discussion relating to theIETF Standards 
> Process. Without limiting the generality of theforegoing, actively 
> commenting or contributing in a session at a live IETFmeetingon a 
> particular topic is deemed to mean participating in the sessionwith 
> respect to that topic, sending a message to an email list is deemed to 
> constituteparticipating in the associated email discussion for its 
> entire duration and any successor email discussions.  Likewise, 
> simplysubscribing to or reading messages received from an IETF 
> emaillist does not constitute participation in the relevant IETF 
> discussion.

So then under America Invents and a number of other laws what happens 
when someone inside the process files a patent around the meeting based 
on their attending a meeting and co-opting IP being transferred at the 
meeting.

The issue is the transfer of that IP to the group so the only question 
needing answering here is whether being in the meeting formally 
contaminates you - the real issue also is not per se what anyone here 
thinks but rather what courts do...

Todd

---

From: Michael Cameron <[email-masked]>
Date: Tue, 9 Apr 2013 19:28:55 +0000

Hello Todd, As you probably know, we are still in somewhat of a transition stage from First-to-Invent to First-to-File (even though the switch occurred March 16), but the USPTO has a good discussion of derivation proceedings. Rather than give a link, please Google "america invents act derivation proceedings". That should address your concern. Best regards, Mike

---

From: "Gonell, Fabian" <[email-masked]>
Date: Tue, 9 Apr 2013 20:08:12 +0000

"Filing a patent around the meeting" does not seem to me to be a likely scenario given that the meeting is conducted in the open and documents would therefore be prior art.

From: [email-masked] [mailto:[email-masked]] On Behalf Of tsg
Sent: Tuesday, April 09, 2013 12:12 PM
To: [email-masked]; Jorge Contreras
Subject: Re: New Version Notification for draft-bradner-rfc3979bis-04.txt

So then under America Invents and a number of other laws what happens when someone inside the process files a patent around the meeting based on their attending a meeting and co-opting IP being transferred at the meeting.

The issue is the transfer of that IP to the group so the only question needing answering here is whether being in the meeting formally contaminates you - the real issue also is not per se what anyone here thinks but rather what courts do...

Todd

The IETF Secretariat

Ipr-wg mailing list

[email-masked]<mailto:[email-masked]>

---

From: Stephan Wenger <[email-masked]>
Date: Tue, 9 Apr 2013 20:08:20 +0000

>IANAL, but perhaps the rule should be "When in doubt, disclose."

That is common sense, but shouldn't need to be a rule, and probably
doesn't need to be documented either.  Among those involved in the actual
IETF disclosure process of Today (in contrast to the, in most cases,
fictional personal disclosure), the implications and possible consequences
of failing to make a disclosure are well enough understood.

Stephan

---

From: Brian E Carpenter <[email-masked]>
Date: Wed, 10 Apr 2013 08:13:45 +0100

> Is that a fair summary of the starting points of discussion, from others'

Yes, I think so. And I still believe we should avoid forming the cross
product of our IPR policies with those of, say, the IEEE - hence my
preference for the second approach.

   Brian

---

From: Brian E Carpenter <[email-masked]>
Date: Wed, 10 Apr 2013 08:46:10 +0100

> valuable.  Can you point me to one where it has been valuable?

That's almost like asking me to prove a negative. No, I have not been
personally involved in a case where the only reasonable technical
solution did not have a (F)RAND disclosure. I'd rather not make
inaccurate statements about cases where I was not involved.

    Brian

---

From: John C Klensin <[email-masked]>
Date: Wed, 10 Apr 2013 08:07:50 -0400

--On Wednesday, April 10, 2013 08:46 +0100 Brian E Carpenter
<[email-masked]> wrote:

>> I have pointed out two concrete, real world examples where
>> "that flexibility" not only could be, but actually *was*
>> unhelpful and not valuable.  Can you point me to one where it
>> has been valuable?
> 
> That's almost like asking me to prove a negative. No, I have
> not been personally involved in a case where the only
> reasonable technical solution did not have a (F)RAND
> disclosure. I'd rather not make inaccurate statements about
> cases where I was not involved.

My memory may be failing, but while it was prior to our current
formal disclosure procedures, weren't the RSA patents an example
of a situation where there were no RAND guarantees?   And wasn't
the discussion of those patents and the associated issues the
grandparent of our current policies?

   john

---

From: Russ Housley <[email-masked]>
Date: Wed, 10 Apr 2013 16:39:10 -0400

> inaccurate statements about cases where I was not involved.

I have been involved in one.  When the first PKI-related RFCs were published, there were no digital signature algorithms that were unencumbered.  At the time RSA and DSA were mature enough that we believed them to be technically sound, but both had patent issues.  Take a look at the last two pages of RFC 1422.  This RFC was a joint product of the IRTF Privacy and Security Research Group (PSRG) and the IETF PEM WG.  We would not handle it exactly the same way today, but the ability for the working group to select an encumbered technology seems to still be valid.

It seems that there are still court cases that are trying to define "reasonable."  Without the definition, I wonder the value in requiring (F)RAND commitment for known encumbered technology.

Russ

---

From: Stephan Wenger <[email-masked]>
Date: Wed, 10 Apr 2013 22:08:24 +0000

Hi Russ,
Thanks for this example of potential harm of my proposal.
I'm hereby withdrawing it.
Stephan

On 4.10.2013 13:39 , "Russ Housley" <[email-masked]> wrote:

>I have been involved in one.  When the first PKI-related RFCs were
>published, there were no digital signature algorithms that were
>unencumbered.  At the time RSA and DSA were mature enough that we
>believed them to be technically sound, but both had patent issues.  Take
>a look at the last two pages of RFC 1422.  This RFC was a joint product
>of the IRTF Privacy and Security Research Group (PSRG) and the IETF PEM
>WG.  We would not handle it exactly the same way today, but the ability
>for the working group to select an encumbered technology seems to still
>be valid.
>
>It seems that there are still court cases that are trying to define
>"reasonable."  Without the definition, I wonder the value in requiring
>(F)RAND commitment for known encumbered technology.
>
>Russ