draft-ietf-ipr-wg-guidelines-01.txt   draft-ietf-ipr-wg-guidelines-02.txt 
IPR Working Group S. Brim IPR Working Group S. Brim
Internet-Draft Cisco Systems, Inc. Internet-Draft Cisco Systems, Inc.
Expires: August 19, 2003 February 18, 2003 Expires: August 30, 2003 March 1, 2003
Guidelines for Working Groups on Intellectual Property Issues Guidelines for Working Groups on Intellectual Property Issues
draft-ietf-ipr-wg-guidelines-01 draft-ietf-ipr-wg-guidelines-02
Status of this Memo Status of this Memo
This document is an Internet-Draft and is in full conformance with This document is an Internet-Draft and is in full conformance with
all provisions of Section 10 of RFC2026. all provisions of Section 10 of RFC2026.
Internet-Drafts are working documents of the Internet Engineering Internet-Drafts are working documents of the Internet Engineering
Task Force (IETF), its areas, and its working groups. Note that other Task Force (IETF), its areas, and its working groups. Note that other
groups may also distribute working documents as Internet-Drafts. groups may also distribute working documents as Internet-Drafts.
skipping to change at page 1, line 30 skipping to change at page 1, line 30
and may be updated, replaced, or obsoleted by other documents at any and may be updated, replaced, or obsoleted by other documents at any
time. It is inappropriate to use Internet-Drafts as reference time. It is inappropriate to use Internet-Drafts as reference
material or to cite them other than as "work in progress." material or to cite them other than as "work in progress."
The list of current Internet-Drafts can be accessed at http:// The list of current Internet-Drafts can be accessed at http://
www.ietf.org/ietf/1id-abstracts.txt. www.ietf.org/ietf/1id-abstracts.txt.
The list of Internet-Draft Shadow Directories can be accessed at The list of Internet-Draft Shadow Directories can be accessed at
http://www.ietf.org/shadow.html. http://www.ietf.org/shadow.html.
This Internet-Draft will expire on August 19, 2003. This Internet-Draft will expire on August 30, 2003.
Copyright Notice Copyright Notice
Copyright (C) The Internet Society (2003). All Rights Reserved. Copyright (C) The Internet Society (2003). All Rights Reserved.
Abstract Abstract
This memo lays out a conceptual framework and rules of thumb useful This memo lays out a conceptual framework and rules of thumb useful
for working groups dealing with IPR issues. It documents specific for working groups dealing with IPR issues. It documents specific
examples of how IPR issues have been dealt with in the IETF. examples of how IPR issues have been dealt with in the IETF.
Table of Contents Table of Contents
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . 3
2. The Problem . . . . . . . . . . . . . . . . . . . . . . . . . 3 2. The Problem . . . . . . . . . . . . . . . . . . . . . . . . 3
3. The Approach . . . . . . . . . . . . . . . . . . . . . . . . . 4 3. The Approach . . . . . . . . . . . . . . . . . . . . . . . . 4
4. Case Studies . . . . . . . . . . . . . . . . . . . . . . . . . 5 4. Case Studies . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 IPS WG (IP Storage) . . . . . . . . . . . . . . . . . . . . . 5 4.1 IPS WG (IP Storage) . . . . . . . . . . . . . . . . . . . . 5
4.2 PEM and PKI issues . . . . . . . . . . . . . . . . . . . . . . 5 4.2 PEM and PKI issues . . . . . . . . . . . . . . . . . . . . . 5
4.3 CDI WG (Content Distribution Internetworking) . . . . . . . . 6 4.3 CDI WG (Content Distribution Internetworking) . . . . . . . 6
4.4 VRRP (Virtual Router Redundancy Protocol) . . . . . . . . . . 6 4.4 VRRP (Virtual Router Redundancy Protocol) . . . . . . . . . 7
4.5 Secure Shell (SecSH) . . . . . . . . . . . . . . . . . . . . . 7 4.5 Secure Shell (SecSH) . . . . . . . . . . . . . . . . . . . . 7
4.6 IDN (Internationalized Domain Name) . . . . . . . . . . . . . 7 4.6 IDN (Internationalized Domain Name) . . . . . . . . . . . . 7
5. General Principles . . . . . . . . . . . . . . . . . . . . . . 9 5. General Principles . . . . . . . . . . . . . . . . . . . . . 9
5.1 Types of IPR . . . . . . . . . . . . . . . . . . . . . . . . . 9 5.1 Types of IPR . . . . . . . . . . . . . . . . . . . . . . . . 9
5.2 When to think about IPR . . . . . . . . . . . . . . . . . . . 9 5.2 When to think about IPR . . . . . . . . . . . . . . . . . . 9
5.3 IPR as a Technology Evaluation Factor . . . . . . . . . . . . 10 5.3 IPR as a Technology Evaluation Factor . . . . . . . . . . . 10
5.4 Patents versus Pending Patents Applied For . . . . . . . . . . 11 5.4 Patents versus Pending Patents Applied For . . . . . . . . . 11
5.5 Applicability: It's Hard to Prove a Negative . . . . . . . . . 11 5.5 Applicability: It's Hard to Prove a Negative . . . . . . . . 11
5.6 No Universal License Terms . . . . . . . . . . . . . . . . . . 12 5.6 Licensing Terms . . . . . . . . . . . . . . . . . . . . . . 12
5.7 Third Party Disclosure . . . . . . . . . . . . . . . . . . . . 13 5.7 Third Party Disclosure . . . . . . . . . . . . . . . . . . . 14
6. Security Considerations . . . . . . . . . . . . . . . . . . . 14 5.7.1 Third Party Disclosure Advice . . . . . . . . . . . . . . . 14
Informative References . . . . . . . . . . . . . . . . . . . . 15 6. Security Considerations . . . . . . . . . . . . . . . . . . 15
Author's Address . . . . . . . . . . . . . . . . . . . . . . . 15 Normative References . . . . . . . . . . . . . . . . . . . . 15
Intellectual Property and Copyright Statements . . . . . . . . 16 Informative References . . . . . . . . . . . . . . . . . . . 16
Author's Address . . . . . . . . . . . . . . . . . . . . . . 16
Intellectual Property and Copyright Statements . . . . . . . 17
1. Introduction 1. Introduction
This memo lays out a conceptual framework and rules of thumb for This memo lays out a conceptual framework and rules of thumb for
working groups dealing with IPR issues. The goal is to achieve a working groups dealing with IPR issues. The goal is to achieve a
balance between the needs of IPR claimants and the implementers of balance between the needs of IPR claimants and the implementers of
the Internet which is appropriate to current times. As part of the Internet which is appropriate to current times. As part of
trying to distill out principles for dealing with IPR in IETF working trying to distill out principles for dealing with IPR in IETF working
groups, it provides case studies of treatments of IPR issues that groups, it provides case studies of treatments of IPR issues that
have already been worked out. In other words, it documents the have already been worked out. In other words, it documents the
running code of the IETF process. running code of the IETF process.
This memo does not describe IPR procedures for document authors or This memo does not describe IPR procedures for document authors or
IPR claimants. Those are covered in two other memos, on IPR in the IPR claimants. Those are covered in two other memos, on IPR in the
IETF [5] and submitters' rights [6]. Rather, this memo is for working IETF [4] and submitters' rights [5]. Rather, this memo is for working
groups that are trying to decide what to do about IPR-protected groups that are trying to decide what to do about IPR-protected
technology contributions. technology contributions.
2. The Problem 2. The Problem
Traditionally the IETF has tried to avoid technologies which were Traditionally the IETF has tried to avoid technologies which were
"protected" through IPR claims. However, compromises have been made "protected" through IPR claims. However, compromises have been made
since before the IETF was born. The "common knowledge" of the IETF, since before the IETF was born. The "common knowledge" of the IETF,
that IPR-protected technology was anathema, has never dealt with the that IPR-protected technology was anathema, has never dealt with the
fact that the Internet has run on IPR-protected technologies from the fact that the Internet has run on IPR-protected technologies from the
skipping to change at page 4, line 14 skipping to change at page 4, line 14
to intellectual property. The IETF can encounter four different IPR to intellectual property. The IETF can encounter four different IPR
situations, at almost any time during the life of a document: situations, at almost any time during the life of a document:
o A document submitter notes its IPR claim regarding the contents of o A document submitter notes its IPR claim regarding the contents of
the document. the document.
o An IETF participant claims that the contents of a document are o An IETF participant claims that the contents of a document are
covered by their own IPR. covered by their own IPR.
o IPR is noted, by the author of a document or by a different IETF o IPR is noted, by the author of a document or by a different IETF
participant, that is claimed by an organization that does not participant, that is claimed by an individual or organization with
participate in the IETF at all. which neither an author of the document nor the participant noting
the IPR have an affiliation.
o An organization that does not participate in the IETF, but that o An individual or organization that does not participate in the
monitors its activities, discovers that a document intersects that IETF, but that monitors its activities, discovers that a document
organization's established or pending intellectual property intersects that individual's or organization's established or
claims. It may come forward right away, or wait and let the IETF pending intellectual property claims. It may come forward right
work progress. away, or wait and let the IETF work progress.
The IETF does not have detailed rules for each situation. Working In working group activites, the IETF does not have detailed rules for
groups have essentially only one rule they can invoke -- about each situation. Working groups have essentially only one rule they
individuals not participating in activities related to a technology can invoke -- about individuals not participating in activities
if they do not disclose known IPR. Other than that a working group related to a technology if they do not disclose known IPR. Beyond
only has recommendations and requests. that a working group can only make recommendations and requests.
Since every case is unique, and there are close to no general rules, Since every case is unique, and there are close to no general rules,
working groups need a great deal of freedom in dealing with IPR working groups need a great deal of freedom in dealing with IPR
issues. However, some amount of consistency is important so that issues. However, some amount of consistency is important so that
both contributors and users of eventual standards can know what to both contributors and users of eventual standards can know what to
expect. expect.
3. The Approach 3. The Approach
The goal of this memo is not to make rules. It is to give working The goal of this memo is not to make rules. It is to give working
skipping to change at page 5, line 17 skipping to change at page 5, line 18
The best way to know what works in dealing with IPR is to look at The best way to know what works in dealing with IPR is to look at
past attempts to do so. The following are selected as cases from past attempts to do so. The following are selected as cases from
which general lessons might be extracted. Other lessons might be which general lessons might be extracted. Other lessons might be
extracted from other cases, but the cases below cover all of the extracted from other cases, but the cases below cover all of the
important ones. important ones.
4.1 IPS WG (IP Storage) 4.1 IPS WG (IP Storage)
The IPS Working Group evaluated technology developed outside of the The IPS Working Group evaluated technology developed outside of the
working group, "secure remote password" (SRP, RFC2945 [4]). At the working group, "secure remote password" (SRP, RFC2945 [6]). At the
time, there was one known IPR claim, and the proposed licensing terms time, there was one known IPR claim, and the proposed licensing terms
were apparently reasonable. SRP had become a proposed standard were apparently reasonable. SRP had become a proposed standard
without going through any working group, so IETF participants may without going through any working group, so IETF participants may
have been less likely to notice it in order to make statements about have been less likely to notice it in order to make statements about
IPR. In any case, two more possible IPR claims were uncovered after IPR. In any case, two more possible IPR claims were uncovered after
the IPS working group had already decided to make SRP required. One the IPS working group had already decided to make SRP required. One
of the possible IPR claimants did not make a strong IPR claim itself, of the possible IPR claimants did not make a strong IPR claim itself,
and did not want to take the time to determine whether it actually and did not want to take the time to determine whether it actually
had a claim, though it acknowledged it might have a claim. In both had a claim, though it acknowledged it might have a claim. In both
cases it was difficult to obtain concrete information on possible cases it was difficult to obtain concrete information on possible
skipping to change at page 7, line 8 skipping to change at page 7, line 12
o Past experience can be used as a significant factor in evaluating o Past experience can be used as a significant factor in evaluating
the possible impact of IPR. the possible impact of IPR.
4.4 VRRP (Virtual Router Redundancy Protocol) 4.4 VRRP (Virtual Router Redundancy Protocol)
The working group was standardizing VRRP based on a protocol The working group was standardizing VRRP based on a protocol
developed outside the IETF. The IPR claimant supported that protocol developed outside the IETF. The IPR claimant supported that protocol
and stated that it would license its IPR for that protocol if it and stated that it would license its IPR for that protocol if it
became the standard, but not for the similar protocol the working became the standard, but not for the similar protocol the working
group was developing. The working group participants decided to go group was developing. The working group participants decided to go
ahead and standardize its protocol anyway. The IPR claimant has only ahead and standardize the protocol developed in the working group
claimed its patent when someone else claimed a patent against it. anyway. The IPR claimant has only claimed its patent when someone
There is no evidence that the working group participants actually else claimed a patent against it. There is no evidence that the
thought about the implications of the IPR when it went ahead with its working group participants actually thought about the implications of
choice of protocol. the IPR claim when it went ahead with its choice of protocol.
Lessons: Lessons:
o IPR claims should never be disregarded without good cause. Due o IPR claims should never be disregarded without good cause. Due
diligence should be done to understand the consequences of each diligence should be done to understand the consequences of each
claim. claim.
4.5 Secure Shell (SecSH) 4.5 Secure Shell (SecSH)
This was primarily a trademark issue, not a patent issue, since the This was primarily a trademark issue, not a patent issue, since the
skipping to change at page 7, line 43 skipping to change at page 7, line 47
their possible validity, but also for the risk of misjudging that their possible validity, but also for the risk of misjudging that
validity. The impact of honoring the IPR claim may be major or validity. The impact of honoring the IPR claim may be major or
minor. minor.
4.6 IDN (Internationalized Domain Name) 4.6 IDN (Internationalized Domain Name)
The IDN working group dealt with a number of IPR claims. Several were The IDN working group dealt with a number of IPR claims. Several were
made which did not overlap with the technology -- the IPR claimants made which did not overlap with the technology -- the IPR claimants
said the patents were being announced just in case the working group said the patents were being announced just in case the working group
decided to go that way. In one case, even though a patent was decided to go that way. In one case, even though a patent was
announced as purely defensive, the working group participants announced as purely defensive, many working group participants
investigated the claims themselves. They concluded that it did not investigated the claims themselves. They concluded that it did not
overlap. overlap.
In one case, an IPR claimer asserted that the working group's In one case, an IPR claimer asserted that the working group's
documents, and in fact the IETF as a whole, were infringing on its documents, and in fact the IETF as a whole, were infringing on its
rights. Individual working group participants consulted with their rights. Individual working group participants consulted with their
legal advisers, concluded that the claims would not overlap the legal advisers, concluded that the claims would not overlap the
working group's developing technology, and decided to ignore the working group's developing technology, and decided to ignore the
claims. This was reflected in the direction the group as a whole claims. This was reflected in the direction the group as a whole
decided to take. decided to take.
skipping to change at page 9, line 17 skipping to change at page 9, line 17
Given the case studies above, here are a few principles that working Given the case studies above, here are a few principles that working
groups can start with in dealing with IPR. Of course every working groups can start with in dealing with IPR. Of course every working
group needs to follow its own consensus, and actual treatments will group needs to follow its own consensus, and actual treatments will
vary as much as they have in the past. However, every working group vary as much as they have in the past. However, every working group
also needs to take IPR seriously, and follow these general also needs to take IPR seriously, and follow these general
principles. principles.
5.1 Types of IPR 5.1 Types of IPR
A primer on the different types of IPR would be large, unreliable, A primer on the different types of IPR would be large, unreliable,
and redundant with other Working Group documents [2][5][6]. For and redundant with other Working Group documents [2][4][5]. For
informal exploration, see those documents and other relevant sources informal exploration, see those documents and other relevant sources
on the web. Readers with more serious concerns should consult their on the web. Readers with more serious concerns should consult their
legal advisors. In the United States, briefly: legal advisors. In the United States, briefly:
o Trademarks indicate the sources of goods. Servicemarks indicate o Trademarks indicate the sources of goods. Servicemarks indicate
the sources of services. They protect the use of particular marks the sources of services. They protect the use of particular marks
or similar marks. or similar marks.
o Copyrights protect the expressions of ideas (not the ideas o Copyrights protect the expressions of ideas (not the ideas
themselves), in almost any form, and allow "fair use". Copyrights themselves), in almost any form, and allow "fair use". Copyrights
skipping to change at page 10, line 8 skipping to change at page 10, line 8
document. document.
o when choosing between two or more working group drafts that use o when choosing between two or more working group drafts that use
different technologies. different technologies.
o when deciding whether to depend on a technology developed outside o when deciding whether to depend on a technology developed outside
the working group. the working group.
o when comparing different kinds of IPR protection. o when comparing different kinds of IPR protection.
At each of these times, the working group should solicit disclosure At each of these times, the working group is strongly encouraged to
of IPR claims and licensing terms. A working group's job will be a solicit disclosure of IPR claims and licensing terms. A working
lot easier if IPR details are discovered early, but it should realize group's job will be a lot easier if IPR details are discovered early,
that IPR claims may appear at any time. Working groups should but it should realize that IPR claims may appear at any time.
anticipate that an IPR claimant might choose not to participate in Working groups should anticipate that an IPR claimant might choose
the IETF, but instead to monitor from a distance while the relevant not to participate in the IETF, but instead to monitor from a
technology is being discussed and evaluated. Actual IPR claims may distance while the relevant technology is being discussed and
therefore depend upon when a claimant steps forward during the course evaluated. Actual IPR claims may therefore depend upon when a
of a WG's deliberations. claimant steps forward during the course of a WG's deliberations.
5.3 IPR as a Technology Evaluation Factor 5.3 IPR as a Technology Evaluation Factor
How do you weigh IPR claims against other issues when deciding How do you weigh IPR claims against other issues when deciding
whether to adopt a technology? whether to adopt a technology?
The ultimate goal of the IETF is to promote the overall health, The ultimate goal of the IETF is to promote the overall health,
robustness, flexibility and utility of the Internet infrastructure. robustness, flexibility and utility of the Internet infrastructure.
We base architectural decisions on our long-term extrapolations of We base architectural decisions on our long-term extrapolations of
requirements by thinking in these terms. When considering a requirements by thinking in these terms. When considering a
skipping to change at page 11, line 20 skipping to change at page 11, line 20
about relative risks of technology choices. Individual participants about relative risks of technology choices. Individual participants
can take these discussions into account. The working group as a body can take these discussions into account. The working group as a body
may not take a stance on validity, but it may make choices based on may not take a stance on validity, but it may make choices based on
perceived risk. perceived risk.
5.4 Patents versus Pending Patents Applied For 5.4 Patents versus Pending Patents Applied For
The IETF does not (cannot) expect IPR claimants to tell a working The IETF does not (cannot) expect IPR claimants to tell a working
group specifically how they think a particular patent applies. If a group specifically how they think a particular patent applies. If a
patent has already been granted, the IETF can reasonably expect patent has already been granted, the IETF can reasonably expect
disclosure of the patent number, which will allow working group disclosure of the patent number and possibly the relevant document
participants to explore details of the claims. If a patent has not sections, which will allow working group participants to explore
yet been granted (or if knowledge of the patent is restricted, e.g. details of the claims. If a patent has not yet been granted (or if
for security reasons), significantly less information is available. knowledge of the patent is restricted, e.g. for security reasons),
In most countries patent applications are published 18 months after significantly less information is available. In most countries
they are filed, but in the USA that can be avoided if the applicant patent applications are published 18 months after they are filed, but
does not also file outside the USA. In some countries applications in the USA that can be avoided if the applicant does not also file
are a matter of public record, but details of pending claims can be outside the USA. In some countries applications are a matter of
modified at any time by the claim submitter before the patent is public record, but details of pending claims can be modified at any
granted. It is not known before then what rights will actually be time by the claim submitter before the patent is granted. It is not
granted. Finally, rights can be contested in court, and nothing is known before then what rights will actually be granted. Finally,
final until the courts decide. All the IETF can expect regarding a rights can be contested in court, and nothing is final until the
pending patent is disclosure that it exists and possibly some courts decide -- perhaps not even then. All the IETF can expect
statement about licensing terms. regarding a pending patent is disclosure that it exists, the related
documents, and possibly specific section numbers and some statement
about licensing terms.
5.5 Applicability: It's Hard to Prove a Negative 5.5 Applicability: It's Hard to Prove a Negative
Working group participants must make their own decisions about what Working group participants must make their own decisions about what
level of confidence they need as to whether IPR is applicable. level of confidence they need as to whether IPR is applicable.
However, perfect knowledge is not a worthwhile goal. However, perfect knowledge is not a worthwhile goal.
In general, a working group should strive to find out about all IPR In general, a working group should strive to find out about all IPR
claims related to technologies it is considering, and at least the claims related to technologies it is considering, and at least the
general facts about licensing terms for each case -- for example general facts about licensing terms for each case -- for example
whether the terms will be "reasonable and non-discriminatory". whether the terms will be royalty-free, or perhaps "reasonable and
Working group participants should also investigate possibilities of non-discriminatory". Working group participants should also
prior art which would counter the IPR claims. However, even if the investigate possibilities of prior art which would counter the IPR
working group participants do exhaustive searches, both externally claims. However, even if the working group participants do
and internally to their employers, it is impossible to prove that a exhaustive searches, both externally and internally to their
particular technology is not covered by a particular IPR claim, let employers, it is impossible to prove that a particular technology is
alone proving that it is not covered by any IPR claim. Anything a not covered by a particular IPR claim, let alone proving that it is
working group adopts may, in the future, turn out to be not covered by any IPR claim. Anything a working group adopts may,
IPR-protected, although the IPR claim may not be discovered until in the future, turn out to be IPR-protected, although the IPR claim
years later. Claims are open to interpretation even after rights are may not be discovered until years later. Claims are open to
granted. Drafts can be very fluid, even up to the time of last call, interpretation even after rights are granted. Drafts can be very
and IPR issues may unknowingly be taken on at any time. Absolute fluid, even up to the time of last call, and IPR issues may
certainty about IPR claims is extremely rare. unknowingly be taken on at any time. Absolute certainty about IPR
claims is extremely rare.
However, the level of confidence needed to consider IPR when However, the level of confidence needed to consider IPR when
evaluating a technology is often not hard to get to. There are cases evaluating a technology is often not hard to get to. There are cases
where risk is high (e.g. where licensing terms may be onerous) and where risk is high (e.g. where licensing terms may be onerous) and
thus a high level of confidence about applicability is needed, but thus a high level of confidence about applicability is needed, but
history shows that most of the time "rough" confidence is good history shows that most of the time "rough" confidence is good
enough. In any case, perfect confidence is usually impossible. enough. In any case, perfect confidence is usually impossible.
In all cases, licensing terms are a more significant consideration In all cases, licensing terms are a more significant consideration
than the validity of the IPR claims. Most of the time licensing than the validity of the IPR claims. Often, licensing terms are
terms are reasonable and do not limit the usefulness of the reasonable and do not limit the usefulness of the technology. It is
technology. It is difficult to be sure about the validity of IPR difficult to be sure about the validity of IPR claims. If the
claims. If the licensing terms can be determined to be reasonable, licensing terms can be determined to be reasonable, then the IPR
then the IPR claims become much less important. claims become much less important.
5.6 No Universal License Terms 5.6 Licensing Terms
Licensing terms vary across a range from prohibitive to no license Licensing terms vary across a range from no license required at all
required at all. In general there are four classes of situation to prohibitive. In general, working groups show a preference for
which will be encountered. technologies with IPR considerations in approximately the following
order. This list does not constitute a rule, and every working group
needs to take its own circumstances into account.
o No license - licenses per se are not available. Local regulations, o Technology which has been publicly disclosed for more than one
if any, apply. year, with no known IPR claims.
o Public domain - the technology is explicitly made available to o Technology which has been publicly disclosed, with no known IPR
all, without any IPR claims. claims.
o General "free" license - the technology is made available free of o IPR disclosed and licensed with no restrictions.
charge. There may be terms which specify conditions for use of
the technology, for example regarding redistribution. There is a
form of this license which invokes "reciprocity", in which the
technology may be used as long as the licensee allows the IPR
claimant to use the licensee's technology in the same area under
comparable terms. A requirement for general reciprocity is also
possible, under which the technology is made available as long as
the licensee does not enforce any IPR claims against the licenser.
o "Reasonable and non-discriminatory" (RAND) terms - the license is o IPR licensed with no material restrictions, e.g. no trademark
granted based on some terms which may include reciprocity. The license required.
terms can vary tremendously. Even when IPR claims do use words
such as "reasonable", "fair", and "non-discriminatory", working o IPR licensed for a particular field of use but no other material
groups should keep in mind that these words have no objective restrictions, e.g. licensed solely for implementations complying
legal definition, at least not in this context. with a standard.
o IPR licensed under openly-specified reasonable and
non-discriminatory restrictions. This may include payment of a
royalty.
o IPR which is otherwise licensable.
o IPR which is not licensable, i.e. which is only available as an
implementation.
o IPR which is not available under any conditions.
Many IPR claimants do not like to publish specific terms under which Many IPR claimants do not like to publish specific terms under which
they will issue licenses. They may use standard terms for many they will issue licenses. They may use standard terms for many
licensees, but they prefer to negotiate terms for some. Therefore, licensees, but they prefer to negotiate terms for some. Therefore,
do not expect any IPR disclosure statement to lay out detailed do not expect any IPR disclosure statement to lay out detailed
blanket terms for licensing. blanket terms for licensing.
If an IPR disclosure statement lists only vague terms, that doesn't If an IPR disclosure statement lists only vague terms, that doesn't
mean the terms that will be offered in individual licenses will be mean the terms that will be offered in individual licenses will be
any worse than those offered in an IPR claim that makes very specific any worse than those offered in an IPR disclosure that makes very
statements. Obviously, if an IPR claimant refuses to suggest any specific statements. Obviously, if an IPR claimant refuses to suggest
terms at all, the working group is going to have trouble evaluating any terms at all, the working group is going to have trouble
the future utility of the technology. evaluating the future utility of the technology.
Recall that words such as "reasonable", "fair", and There is class of restriction which involves "reciprocity", in which
"non-discriminatory" have no objective legal or financial definition. the technology may be used as long as the licensee allows the IPR
Also, IPR claimants have occasionally asserted that there were claimant to use the licensee's technology in the same area under
already sufficient licenses for a particular technology to meet comparable terms. A requirement for general reciprocity is also
"reasonable" multisource and competitiveness requirements and, hence, possible, under which the technology is made available for free as
that refusing to grant any licenses to new applicants was both fair long as the licensee does not enforce any IPR claims against the
and nondiscriminatory. The best way to find out what an IPR claimant licenser.
really means by those terms is to ask, explicitly. It also helps to
gather knowledge about licenses actually issued, for that technology Words such as "reasonable", "fair", and "non-discriminatory" have no
or for others, and about other experiences with the IPR claimant. objective legal or financial definition. The actual licensing terms
can vary tremendously. Also, IPR claimants have occasionally
asserted that there were already sufficient licenses for a particular
technology to meet "reasonable" multisource and competitiveness
requirements and, hence, that refusing to grant any licenses to new
applicants was both fair and nondiscriminatory. The best way to find
out what an IPR claimant really means by those terms is to ask,
explicitly. It also helps to gather knowledge about licenses actually
issued, for that technology or for others, and about other
experiences with the IPR claimant.
Despite the fact that IPR claimants often don't like to publish Despite the fact that IPR claimants often don't like to publish
explicit terms, there are levels of vagueness, and individuals and explicit terms, there are levels of vagueness, and individuals and
even working groups can sometimes successfully push an IPR claimant even working groups can sometimes successfully push an IPR claimant
toward less vagueness. The employers of IETF participants all know toward less vagueness. Many employers of IETF participants know that
that that IETF prefers explicit terms, and do feel pressure to that IETF prefers explicit terms, and do feel pressure to produce
produce them. them.
If working group participants are dissatisfied with the confidence If working group participants are dissatisfied with the confidence
level they can obtain directly about licensing terms for a particular level they can obtain directly about licensing terms for a particular
technology, they can possibly extrapolate from history. As part of technology, they can possibly extrapolate from history. In order for
the standards process as described in RFC2026 [2], in order for
licensed technology to become a draft standard, at least two licensed technology to become a draft standard, at least two
independent licenses need to have been issued. If the IPR claimant independent licenses need to have been issued. If the IPR claimant
for the technology the working group is considering has licensed for the technology the working group is considering has licensed
other technology in the past, there is a record of the sorts of terms other technology in the past, there is a record of the sorts of terms
they are willing to grant, at least in those two specific cases. This they are willing to grant, at least in those two specific cases.
sort of thing is weak but everything counts, and it may be some This sort of thing is weak but everything counts, and it may be of
indication. some help.
5.7 Third Party Disclosure 5.7 Third Party Disclosure
Formal procedures for third party disclosures are the same as those Formal procedures for third party disclosures are the same as those
outlined in [5]. However, before those procedures are followed some outlined in [4]. However, anyone considering such a disclosure is
preliminary explorations are a good idea. Third party disclosure is encouraged to engage in some preliminary exploration with the
a potential denial of service threat to the working group, and affected working group(s) beforehand (see Section 5.7.1). Third party
therefore it is good form to proceed slowly. disclosure is a potential denial of service threat to the working
group, and therefore it is good form to proceed slowly.
Working group participants should be aware that third party
disclosure can be used, knowingly or unknowingly, to defocus and
distract the working group and hinder its progress. They should
evaluate 3rd party disclosures accordingly. WG chairs should be
willing and able to discipline those they think are using the third
party disclosure system inappropriately. Those who think they are
being unfairly blocked may take the matter up with the Area Directors
and/or the IESG.
All of the criteria for evaluating IPR claims discussed in the
sections above apply in the case of third party disclosures as well,
to the extent they can be practiced.
5.7.1 Third Party Disclosure Advice
This subsection provides advice to those considering making third
party disclosures. While not strictly required, the actions
described here are encouraged to aid working groups in dealing with
the possible implications of third party disclosures. In evaluating
what (if anything) to do in response to a third party disclosure, a
WG may consider the extent to which the discloser has followed this
advice (for example, in considering whether a disclosure is intended
primarily to defocus and distract the WG).
In general a potential discloser should exchange mail with the In general a potential discloser should exchange mail with the
working group chair(s) first, to open the way for discussion. Also, working group chair(s) first, to open the way for discussion. Also,
if the potential discloser is not sure if the IPR claim applies, this if the potential discloser is not sure if the IPR claim applies, this
is the time to reach some kind of agreement with the working group is the time to reach some kind of agreement with the working group
chairs before saying anything publicly. After discussion with the chairs before saying anything publicly. After discussion with the
working group chairs, they should bring the issue to the attention of working group chairs, they should bring the issue to the attention of
the working group, and to the attention of the IPR claimant if doing the working group, and to the attention of the IPR claimant if doing
so is not too difficult. Such discussion should help the potential so is not too difficult. Such discussion should help the potential
discloser to become more sure, one way or the other. If they are discloser to become more sure, one way or the other. If they are
sure the discovered IPR claim applies, and the IPR claimant does not sure the discovered IPR claim applies, and the IPR claimant does not
submit a firstparty disclosure itself, then they have a submit a first party disclosure itself, then they are encouraged to
responsibility to submit a third party disclosure. submit a third party disclosure.
Intellectual property often applies to more than one working group. Intellectual property often applies to more than one working group.
A person thinking of third party disclosure should consider what A person thinking of third party disclosure should consider what
other working groups might be affected, and communicate with them in other working groups might be affected, and communicate with them in
the same manner. the same manner.
Don't bring up IPR issues that are unrelated to the areas where the Don't bring up IPR issues that are unrelated to the areas where the
WG is focusing at that time. Don't bring claims to the WG's WG is focusing at that time. Don't bring claims to the WG's
attention just in case it might go there in a few months, only if it attention just in case it might go there in a few months, only if it
has implications for current work. Messages to the working group list has implications for current work. Messages to the working group list
should be substantive and a single message should focus on a specific should be substantive and a single message should focus on a specific
issue. They can reference multiple claims or patents related to that issue. They can reference multiple claims or patents related to that
issue. issue.
Working group participants should be aware that third party
disclosure can be used, knowingly or unknowingly, to defocus and
distract the working group and hinder its progress. They should
evaluate 3rd party claims accordingly. WG chairs should be willing
and able to discipline those they think are using the third party
disclosure system inappropriately. Those who think they are being
unfairly blocked may take the matter up with the Area Directors and/
or the IESG.
All of the criteria for evaluating IPR claims discussed in the
sections above apply in the case of third party disclosures as well,
to the extent they can be practiced.
6. Security Considerations 6. Security Considerations
This memo relates to IETF process, not any particular technology. This memo relates to IETF process, not any particular technology.
There are security considerations when adopting any technology, There are security considerations when adopting any technology,
whether IPR-protected or not. A working group should take those whether IPR-protected or not. A working group should take those
security considerations into account as one part of evaluating the security considerations into account as one part of evaluating the
technology, just as IPR is one part, but they are not issues of technology, just as IPR is one part, but they are not issues of
security with IPR procedures. security with IPR procedures.
There may be security issues with procedures for dealing with IPR, Normative References
but they are not technical. They have more to do with
unintentionally revealing corporate intellectual property through
human activity than risking anything when using a protocol.
Informative References
[1] IETF, "IPR Working Group web page", 2002, <http://www.ietf.org/ [1] IETF, "IPR Working Group web page", 2002, <http://www.ietf.org/
html.charters/ipr-charter.html>. html.charters/ipr-charter.html>.
[2] Bradner, S., "The Internet Standards Process -- Revision 3", BCP [2] Bradner, S., "The Internet Standards Process -- Revision 3", BCP
9, RFC 2026, October 1996. 9, RFC 2026, October 1996.
[3] Bradner, S., "Key words for use in RFCs to Indicate Requirement [3] Bradner, S., "Key words for use in RFCs to Indicate Requirement
Levels", BCP 14, RFC 2119, March 1997. Levels", BCP 14, RFC 2119, March 1997.
[4] Wu, T., "The SRP Authentication and Key Exchange System", RFC [4] Bradner, S., "Intellectual Property Rights in IETF Technology",
2945, September 2000.
[5] Bradner, S., "Intellectual Property Rights in IETF Technology",
draft-ietf-ipr-technology-rights-01 (work in progress), February draft-ietf-ipr-technology-rights-01 (work in progress), February
2003. 2003.
[6] Bradner, S., "IETF Rights in Submissions", [5] Bradner, S., "IETF Rights in Submissions",
draft-ietf-ipr-submission-rights-01 (work in progress), February draft-ietf-ipr-submission-rights-01 (work in progress), February
2003. 2003.
Informative References
[6] Wu, T., "The SRP Authentication and Key Exchange System", RFC
2945, September 2000.
Author's Address Author's Address
Scott Brim Scott Brim
Cisco Systems, Inc. Cisco Systems, Inc.
146 Honness Lane 146 Honness Lane
Ithaca, NY 14850 Ithaca, NY 14850
USA USA
EMail: sbrim@cisco.com EMail: sbrim@cisco.com
 End of changes. 

This html diff was produced by rfcdiff 1.23, available from http://www.levkowetz.com/ietf/tools/rfcdiff/