draft-ietf-ipr-wg-guidelines-02.txt   draft-ietf-ipr-wg-guidelines-03.txt 
IPR Working Group S. Brim IPR Working Group S. Brim
Internet-Draft Cisco Systems, Inc. Internet-Draft Cisco Systems, Inc.
Expires: August 30, 2003 March 1, 2003 Expires: October 21, 2003 April 22, 2003
Guidelines for Working Groups on Intellectual Property Issues Guidelines for Working Groups on Intellectual Property Issues
draft-ietf-ipr-wg-guidelines-02 draft-ietf-ipr-wg-guidelines-03
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
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skipping to change at page 1, line 30 skipping to change at page 1, line 30
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This Internet-Draft will expire on August 30, 2003. This Internet-Draft will expire on October 21, 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 PPP CCP and ECP . . . . . . . . . . . . . . . . . . . . . . 5
4.2 PEM and PKI issues . . . . . . . . . . . . . . . . . . . . . 5 4.2 IPS WG (IP Storage) . . . . . . . . . . . . . . . . . . . . 5
4.3 CDI WG (Content Distribution Internetworking) . . . . . . . 6 4.3 PEM and PKI issues . . . . . . . . . . . . . . . . . . . . . 6
4.4 VRRP (Virtual Router Redundancy Protocol) . . . . . . . . . 7 4.4 CDI WG (Content Distribution Internetworking) . . . . . . . 7
4.5 Secure Shell (SecSH) . . . . . . . . . . . . . . . . . . . . 7 4.5 VRRP (Virtual Router Redundancy Protocol) . . . . . . . . . 7
4.6 IDN (Internationalized Domain Name) . . . . . . . . . . . . 7 4.6 Secure Shell (SecSH) . . . . . . . . . . . . . . . . . . . . 8
4.7 IDN (Internationalized Domain Name) . . . . . . . . . . . . 8
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 . . . . . . . . . . . . . . . . . . 10
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 . . . . . . . . 12
5.6 Licensing Terms . . . . . . . . . . . . . . . . . . . . . . 12 5.6 Licensing Terms . . . . . . . . . . . . . . . . . . . . . . 13
5.7 Third Party Disclosure . . . . . . . . . . . . . . . . . . . 14 5.7 Third-Party Disclosure of IPR Claims . . . . . . . . . . . . 15
5.7.1 Third Party Disclosure Advice . . . . . . . . . . . . . . . 14 5.7.1 Third-Party Disclosure Advice . . . . . . . . . . . . . . . 15
6. Security Considerations . . . . . . . . . . . . . . . . . . 15 6. Security Considerations . . . . . . . . . . . . . . . . . . 16
Normative References . . . . . . . . . . . . . . . . . . . . 15 7. Acknowledgments . . . . . . . . . . . . . . . . . . . . . . 16
Informative References . . . . . . . . . . . . . . . . . . . 16 Normative References . . . . . . . . . . . . . . . . . . . . 16
Author's Address . . . . . . . . . . . . . . . . . . . . . . 16 Informative References . . . . . . . . . . . . . . . . . . . 17
Intellectual Property and Copyright Statements . . . . . . . 17 Author's Address . . . . . . . . . . . . . . . . . . . . . . 17
Intellectual Property and Copyright Statements . . . . . . . 18
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 to
working groups dealing with IPR issues. The goal is to achieve a assist working groups dealing with IPR issues. The goal is to
balance between the needs of IPR claimants and the implementers of achieve a balance between the needs of IPR claimants and the
the Internet which is appropriate to current times. As part of implementers of the Internet which is appropriate to current times.
trying to distill out principles for dealing with IPR in IETF working As part of trying to distill out principles for dealing with IPR in
groups, it provides case studies of treatments of IPR issues that IETF working groups, it provides case studies of working group IPR
have already been worked out. In other words, it documents the treatment. In other words, it documents the running code of the IETF
running code of the IETF process. 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 [4] and submitters' rights [5]. Rather, this memo is for working IETF [3] and submission rights [4]. 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 technology
technology contributions. contributions which have associated IPR claims.
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-impacted technology was anathema, has never recognized that
fact that the Internet has run on IPR-protected technologies from the the Internet has run on IPR-impacted technologies from the beginning.
beginning. Nowadays the majority of the useful technologies brought Nowadays the majority of the useful technologies brought to the IETF
to the IETF have some sort of IPR claim associated with them. have some sort of IPR claim associated with them.
It will always be better for the Internet to develop standards based It will always be better for the Internet to develop standards based
on technology which can be used without concern about selective or on technology which can be used without concern about selective or
costly licensing. However, increasingly, choosing a technology which costly licensing. However, increasingly, choosing a technology which
is not protected by IPR over an alternative that is may produce a is not impacted by IPR over an alternative that is may produce a
weaker Internet. Sometimes there simply isn't any technology in an weaker Internet. Sometimes there simply isn't any technology in an
area that is not IPR-protected. It is not always the wrong choice to area that is not IPR-impacted. It is not always the wrong decision to
select IPR-protected technology, if the choice is made knowingly, select IPR-impacted technology, if the choice is made knowingly,
after considering the alternatives and taking the IPR issues into after considering the alternatives and taking the IPR issues into
account. account.
The IETF is not a membership organization. Other standards making The IETF is not a membership organization. Other standards making
bodies may have membership agreements that member organizations must bodies may have membership agreements that member organizations must
sign and adhere to in order to participate. Membership agreements sign and adhere to in order to participate. Membership agreements
may include strict procedures for dealing with IPR, or perhaps a may include strict procedures for dealing with IPR, or perhaps a
requirement that technology must be licensed royalty-free. This is requirement that technology must be licensed royalty-free. This is
currently not possible in the IETF. currently not possible in the IETF.
Even if the IETF had membership agreements, they would be difficult Even if the IETF had membership agreements, they would be difficult
to formulate in a way that covered IPR problems, because the IETF's to formulate in a way that covered IPR issues, because the IETF's
work includes technology from other sources and because the IETF work includes technology from other sources and because the IETF
collaborates with organizations that work with different approaches collaborates with organizations that work with different approaches
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 their IPR claim regarding the contents
the document. of the document.
o An IETF participant claims that the contents of a document are o A non-submitter IETF participant claims that the contents of a
covered by their own IPR. document are covered by their (or their represented
organization's) own IPR.
o IPR is noted, by the author of a document or by a different IETF o An IETF participant notes IPR that is claimed by an individual or
participant, that is claimed by an individual or organization with organization with which neither an author of the document, nor the
which neither an author of the document nor the participant noting participant noting the IPR, have an affiliation.
the IPR have an affiliation.
o An individual or organization that does not participate in the o An individual or organization that does not participate in the
IETF, but that monitors its activities, discovers that a document IETF, but that monitors its activities, discovers that a document
intersects that individual's or organization's established or intersects that individual's or organization's established or
pending intellectual property claims. It may come forward right pending intellectual property claims. It may come forward right
away, or wait and let the IETF work progress. away, or wait and let the IETF work progress.
In working group activites, the IETF does not have detailed rules for In working group activities, the IETF does not have detailed rules
each situation. Working groups have essentially only one rule they for each situation. Working groups have essentially only one rule
can invoke -- about individuals not participating in activities they can invoke -- about individuals not participating in activities
related to a technology if they do not disclose known IPR. Beyond related to a technology if they do not disclose known IPR. Beyond
that a working group can only make 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. The goal is to give
groups as much information as possible to make informed decisions, working groups as much information as possible to make informed
and then step out of the way. The other IPR working group memos (see decisions, and then step out of the way. The other IPR working group
the IPR Working Group charter page [1]) lay out what needs to be done memos [3][4] lay out what needs to be done once a particular piece of
once a particular piece of technology is selected as a working group technology is selected as a working group draft. However, this
draft. That doesn't help when a working group is trying to decide doesn't help when a working group is trying to decide whether or not
whether to select a technology or not in the first place. Thus this to select a technology in the first place. This third memo is written
third memo. We want to build a conceptual framework, a new set of to help in making that decision. We want to build a conceptual
"common knowledge", to make it easier for working groups to deal with framework, a new set of "common knowledge", to make it easier for
intellectual property issues. working groups to deal with intellectual property issues.
To do so, we first present "case studies" in Section 4 -- real events To do so, we first present a number of "case studies" in Section 4 --
that have happened in recent years, and how different working groups real events that have happened in recent years, and how different
dealt with them -- plus notes on possible lessons to be learned. In working groups dealt with them -- plus notes on possible lessons to
Section 5, we expand on these lessons and try to extract general be learned. In Section 5, we expand on these lessons and try to
principles. extract general principles.
4. Case Studies 4. Case Studies
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 PPP CCP and ECP
The IPS Working Group evaluated technology developed outside of the The PPP Working Group adopted technology for PPP's Connection Control
working group, "secure remote password" (SRP, RFC2945 [6]). At the Protocol and Encryption Control Protocol which it knew was patented.
time, there was one known IPR claim, and the proposed licensing terms They indicated to the IESG that they believed the patented technology
were apparently reasonable. SRP had become a proposed standard was the best approach, and was better than no standards at all.
without going through any working group, so IETF participants may
have been less likely to notice it in order to make statements about At that time, under the policies documented in RFC 1602 [5] (the
IPR. In any case, two more possible IPR claims were uncovered after precursor to RFC 2026), progress on any standard was to stop at the
the IPS working group had already decided to make SRP required. One Proposed Standard phase until specific assurances about licensing
of the possible IPR claimants did not make a strong IPR claim itself, terms could be obtained from all IPR claimants. However, as
and did not want to take the time to determine whether it actually described in RFC 1915 [1], in the case of PPP ECP and CCP, the IPR
had a claim, though it acknowledged it might have a claim. In both claimant balked at the requirement for specific assurances.
cases it was difficult to obtain concrete information on possible
licensing terms, even though words like "reasonable" and Finally, with support from the working group, a variance was granted
"non-discriminatory" were used in the IPR statements. Rumors of what to the RFC 1602 procedures. If it hadn't been granted, the ECP and
they might be like did not sound good. The working group CCP standards could have been blocked permanently.
participants took the claims, potential and otherwise, very
seriously, and decided not to use SRP after all, even though they had Lessons:
already chosen it based on other criteria.
o IPR claimants, even when their intentions are good, may strongly
resist being forced to make specific public statements about
licensing terms. If explicit statements of licensing terms are
required, then the publicly stated terms will probably be
"worst-case", which would provide little useful information.
4.2 IPS WG (IP Storage)
The IPS (IP Storage) Working Group evaluated technology developed
outside of the working group, "secure remote password" (SRP, RFC 2945
[6]). At the time, there was one known IPR claim, and the proposed
licensing terms were apparently reasonable. SRP had become a
proposed standard without going through any working group, so IETF
participants may 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 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, 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 cases it was difficult to obtain concrete
information on possible licensing terms, even though words like
"reasonable" and "non-discriminatory" were used in the IPR
statements. Rumors of what they might be like did not sound good.
The working group participants took the claims, potential and
otherwise, very seriously, and decided not to use SRP after all, even
though they had already chosen it based on other criteria.
Lessons: Lessons:
o IPR claims may appear at any time in the standards process. o IPR claims may appear at any time in the standards process.
o Take impreciseness seriously. Attempt to get clarification on o Take impreciseness seriously. Attempt to get clarification on
both IPR claims and licensing terms. both IPR claims and licensing terms.
4.2 PEM and PKI issues 4.3 PEM and PKI issues
PEM (Privacy-Enhanced Mail) wanted to use public key technology. In PEM (Privacy-Enhanced Mail) wanted to use public key technology. In
the mid-90s, the basic principles of public key infrastructure had the mid-90s, the basic principles of public key infrastructure had
been patented for years. The patent holder had shown a tendency to been patented for years. The patent holder had shown a tendency to
actively enforce its rights, and to prefer software sales to actively enforce its rights, and to prefer software sales to
licensing. This was seen as a significant potential issue, one which licensing. This was seen as a significant potential issue, one which
could possibly interfere with the easy development of the Internet. could possibly interfere with the easy deployment of Internet
technology. However, there was no alternative technology that came
However, there was no alternative technology that came close to its close to its capabilities. Adopting an alternative would have
capabilities. Adopting an alternative would have damaged the damaged the standard's usefulness even more than adopting a
Internet's health and flexibility even more than adopting a
technology with IPR claims. The case was so compelling that the technology with IPR claims. The case was so compelling that the
working group participants decided to move forward on standardizing working group participants decided to move forward on standardizing
it and even requiring it. it and even requiring it.
One factor which was noted was that the patents were mature, and One factor which was noted was that the patents were mature, and
would expire within a few years. That meant that although the impact would expire within a few years. That meant that although the patents
might be significant to start with, it would not be in the long run. might be significant to start with, they would not be in the long
This lowered the perceived risk of using the IPR-protected run. This lowered the perceived risk of using the IPR-impacted
technology. technology.
Lessons: Lessons:
o IPR is just one issue in deciding whether to adopt a technology. o IPR is just one issue in deciding whether to adopt a technology.
o IPR is not an all or nothing issue. There are different types and o IPR is not an all or nothing issue. There are different types and
levels of IPR protection. levels of IPR protection.
o The IPR's lifecycle phase can be a consideration. o The IPR's lifecycle phase can be a consideration.
4.3 CDI WG (Content Distribution Internetworking) 4.4 CDI WG (Content Distribution Internetworking)
The CDI Working Group laid out an overall architecture and found that The CDI (Content Distribution Internetworking) Working Group laid out
a number of included technologies had IPR claims associated with an overall architecture and found that a number of included
them, based on work done before the working group was started. The technologies had IPR claims associated with them, based on work done
working group participants decided there was little chance of before the working group was started. The working group participants
producing alternative technologies which were as useful and which did decided there was little chance of producing alternative technologies
not run up against these IPR claims. As usual, there was no good way which were as useful and which did not run up against these IPR
to evaluate claims and possible licensing terms until after the claims. As usual, there was no good way to evaluate claims and
technology had been completely specified (at the earliest). possible licensing terms until after the technology had been
completely specified (at the earliest).
Working group participants generally thought they had a good idea However, working group participants generally thought they had a good
what to expect from each other, and that the ultimate benefits of idea what to expect from each other with regard to licensing, and in
using the technologies outweighed the IPR issues. The working group fact expected few if any problems. The expected risks were low
participants decided not to consider IPR as an issue at all in enough that they thought the ultimate benefits of using the
determining which technologies to adopt. technologies outweighed the expected burden of the IPR issues. The
working group participants decided they did not need to consider IPR
as an issue in determining which technologies to adopt.
Lessons: Lessons:
o Past experience can be used as a significant factor in evaluating o Past experience with patent claimants can be used as a significant
the possible impact of IPR. factor in evaluating the possible impact of IPR. It can lead to
enough mutual trust that concerns about licensing terms do not
slow the working group down.
4.4 VRRP (Virtual Router Redundancy Protocol) 4.5 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 the protocol developed in the working group ahead and standardize the protocol developed in the working group
anyway. The IPR claimant has only claimed its patent when someone anyway. The IPR claimant has only claimed its patent when someone
else claimed a patent against it. There is no evidence that the else claimed a patent against it. There is no evidence that the
working group participants actually thought about the implications of working group participants actually thought about the implications of
the IPR claim when it went ahead with its 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) 4.6 Secure Shell (SecSH)
This was primarily a trademark issue, not a patent issue, since the This is primarily an unfinished trademark issue, not a patent issue,
patent issue had been worked out outside of the IETF. The holder of since the patent issue has been worked out outside of the IETF. The
a trademark wanted the IETF to stop using "SSH" in the names and holder of a trademark wants the IETF to stop using "SSH" in the names
bodies of its proposed standards. The working group participants and bodies of its proposed standards. The working group participants
thought through the details of the claims, and possible implications have thought through the details of the claims, and possible
and risks, and decided to go ahead and continue using the names as implications and risks, and decided to go ahead and continue using
they are now. This issue is still being worked through. the names as they are now.
Lessons: Lessons:
o Working group participants can evaluate IPR claims not only for o Working group participants can evaluate IPR claims not only for
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) 4.7 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, many 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 claimant 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 that they need not
claims. This was reflected in the direction the group as a whole be concerned about the claims. This was reflected in the direction
decided to take. the group as a whole decided to take.
In another case, patent claims were asserted that appeared to be In another case, patent claims were asserted that appeared to be
derived from WG discussion and impact, rather than vice versa (or derived from WG discussion, rather than vice versa (or independent
independent discovery). The claimants were known to be following the discovery). The claimants were known to be following the WG's work
WG's work when the ideas were proposed, and their patent filing was when the ideas were proposed, and their patent filing was
considerably subsequent to that time. considerably subsequent to that time.
In 2000 the IDN working group discovered a patent that some In 2000 the IDN working group discovered a patent that some
participants thought might apply to one of their main drafts. If it participants thought might apply to one of their main drafts. If it
did, it could affect their work profoundly -- to the extent that some did, it could affect their work profoundly -- to the extent that some
suggested that if they could not work out reasonable licensing terms suggested that if they could not work out reasonable licensing terms
with the IPR claimant they might just disband. As a group and with the IPR claimant they might just disband. As a group and
individually, participants corresponded with IPR claimant in order to individually, participants corresponded with IPR claimant in order to
get an explicit statement of licensing terms, preferably get an explicit statement of licensing terms, preferably
royalty-free. By doing so they gained a better understanding of just royalty-free. By doing so they gained a better understanding of just
skipping to change at page 9, line 7 skipping to change at page 9, line 35
o It's all right, and sometimes beneficial, to discuss IPR claims o It's all right, and sometimes beneficial, to discuss IPR claims
and gather information about possible prior art on the group list. and gather information about possible prior art on the group list.
The results of such discussion can be considered when deciding The results of such discussion can be considered when deciding
whether to develop a technology (but remember that neither the whether to develop a technology (but remember that neither the
IETF nor any working group takes a stand on such claims as a body, IETF nor any working group takes a stand on such claims as a body,
and the group is not the best place to get legal advice). and the group is not the best place to get legal advice).
5. General Principles 5. General Principles
Given the case studies above, here are a few principles that working Given the case studies above, there 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 develop and follow its own consensus, and actual
vary as much as they have in the past. However, every working group treatments will vary as much as they have in the past. However, every
also needs to take IPR seriously, and follow these general working group also needs to take IPR seriously, and follow these
principles. general 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][4][5]. For and redundant with other Working Group documents [2][3][4]. 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
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o when comparing different kinds of IPR protection. o when comparing different kinds of IPR protection.
At each of these times, the working group is strongly encouraged to At each of these times, the working group is strongly encouraged to
solicit disclosure of IPR claims and licensing terms. A working solicit disclosure of IPR claims and licensing terms. A working
group's job will be a lot easier if IPR details are discovered early, group's job will be a lot easier if IPR details are discovered early,
but it should realize that IPR claims may appear at any time. but it should realize that IPR claims may appear at any time.
Working groups should anticipate that an IPR claimant might choose Working groups should anticipate that an IPR claimant might choose
not to participate in the IETF, but instead to monitor from a not to participate in the IETF, but instead to monitor from a
distance while the relevant technology is being discussed and distance while the relevant technology is being discussed and
evaluated. Actual IPR claims may therefore depend upon when a evaluated. Actual knowledge of IPR claims may therefore depend upon
claimant steps forward during the course of a WG's deliberations. when a 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
particular technology, we compare it with other technologies not just particular technology, we compare it with other technologies not just
for its elegance of design in and of itself, but also for how it fits for its elegance of design in and of itself, but also for how it fits
in the bigger picture. This is done at multiple levels. It is in the bigger picture. This is done at multiple levels. It is
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for its elegance of design in and of itself, but also for how it fits for its elegance of design in and of itself, but also for how it fits
in the bigger picture. This is done at multiple levels. It is in the bigger picture. This is done at multiple levels. It is
examined for how it fits into the overall design of the working examined for how it fits into the overall design of the working
group's output, how it fits into the particular Internet group's output, how it fits into the particular Internet
infrastructure area, how it fits with work going on in other areas, infrastructure area, how it fits with work going on in other areas,
and how it fits in the long view of the Internet architecture. and how it fits in the long view of the Internet architecture.
Similarly, when evaluating a technology, working group participants Similarly, when evaluating a technology, working group participants
consider IPR claims on it (including possible copyright issues with consider IPR claims on it (including possible copyright issues with
text describing it). The issue is not whether a particular piece of text describing it). The issue is not whether a particular piece of
technology is IPR-protected -- we use IPR-protected technology every technology is IPR-impacted -- we use IPR-impacted technology every
minute. The question is how much the IPR protection will limit the minute. The question is how much the IPR protection will limit the
technology's usefulness in building a robust, highly useful Internet. technology's usefulness in building a robust, highly useful Internet.
Thus, the only significant questions are: is the IPR claim relevant, Thus, the only significant questions are: is the IPR claim relevant,
and if so what are the terms under which the technology can be used? and if so what are the terms under which the technology can be used?
When technology is free from IPR protection the answer is easy. When When technology is free from IPR protection the answer is easy. When
it is IPR-protected, some terms make the IPR issues insignificant it is IPR-impacted, some terms make the IPR issues insignificant
compared to the engineering issues. Other terms can make a compared to the engineering issues. Other terms can make a
technology unusable even if it is perfect otherwise. technology unusable even if it is perfect otherwise.
The problem with IPR as a technology evaluation factor is that it is The problem with IPR as a technology evaluation factor is that it is
unlikely that a working group, as an entity, can ever claim to have unlikely that a working group, as an entity, can ever claim to have
reached consensus on most IPR issues. The IETF as a whole, and a reached consensus on most IPR issues. The IETF as a whole, and a
working group as a whole, takes no stance on the validity of any IPR working group as a whole, takes no stance on the validity of any IPR
claim. It would be inappropriate for a working group chair to claim. It would be inappropriate for a working group chair to
declare that consensus had been reached that, for example, a declare that consensus had been reached that, for example, a
company's patent was invalid. Individual participants will need to company's patent was invalid. Individual participants will need to
use whatever legal advice resources they have access to to form their use whatever legal advice resources they have access to in order to
own individual opinions. Discussions about the validity of IPR can form their own individual opinions. Discussions about the validity
take place under the auspices of the working group, in particular of IPR can take place under the auspices of the working group, in
about relative risks of technology choices. Individual participants particular about relative risks of technology choices. Individual
can take these discussions into account. The working group as a body participants can take these discussions into account. The working
may not take a stance on validity, but it may make choices based on group as a body may not take a stance on validity, but it may make
perceived risk. choices based on 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 and possibly the relevant document disclosure of the patent number and possibly the relevant IETF
sections, which will allow working group participants to explore document sections, which will allow working group participants to
details of the claims. If a patent has not yet been granted (or if explore details of the claims. If a patent has not yet been granted
knowledge of the patent is restricted, e.g. for security reasons), (or if knowledge of the patent is restricted, e.g. for security
significantly less information is available. In most countries reasons), significantly less information is available. In most
patent applications are published 18 months after they are filed, but countries patent applications are published 18 months after they are
in the USA that can be avoided if the applicant does not also file filed, but in the USA that can be avoided if the applicant does not
outside the USA. In some countries applications are a matter of also file outside the USA. In some countries applications are a
public record, but details of pending claims can be modified at any matter of public record, but details of pending claims can be
time by the claim submitter before the patent is granted. It is not modified at any time by the claim submitter before the patent is
known before then what rights will actually be granted. Finally, granted. It is not known before then what rights will actually be
rights can be contested in court, and nothing is final until the granted. Finally, rights can be contested in court, and nothing is
courts decide -- perhaps not even then. All the IETF can expect final until the courts decide -- perhaps not even then. All the IETF
regarding a pending patent is disclosure that it exists, the related can expect regarding a pending patent is disclosure that it exists,
documents, and possibly specific section numbers and some statement the related IETF documents, and possibly the relevant IETF document
about licensing terms. sections 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 royalty-free, or perhaps "reasonable and whether the terms will be royalty-free, or perhaps "reasonable and
non-discriminatory". Working group participants should also non-discriminatory". Working group participants should also
investigate possibilities of prior art which would counter the IPR investigate possibilities of prior art which would counter the IPR
claims. However, even if the working group participants do claims. However, even if the working group participants do
exhaustive searches, both externally and internally to their exhaustive searches, both externally and internally to their
employers, it is impossible to prove that a particular technology is employers, it is impossible to prove that a particular technology is
not covered by a particular IPR claim, let alone proving that it is not covered by a particular IPR claim, let alone prove that it is not
not covered by any IPR claim. Anything a working group adopts may, covered by any IPR claim. Anything a working group adopts may, in
in the future, turn out to be IPR-protected, although the IPR claim the future, turn out to be IPR-impacted, although the IPR claim may
may not be discovered until years later. Claims are open to not be discovered until years later. Claims are open to
interpretation even after rights are granted. Drafts can be very interpretation even after rights are granted. Drafts can be very
fluid, even up to the time of last call, and IPR issues may fluid, even up to the time of last call, and IPR issues may
unknowingly be taken on at any time. Absolute certainty about IPR unknowingly be taken on at any time. Absolute certainty about IPR
claims is extremely rare. 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. Often, licensing terms are than the validity of the IPR claims. licensing terms often do not
reasonable and do not limit the usefulness of the technology. It is limit the usefulness of the technology. It is difficult to be sure
difficult to be sure about the validity of IPR claims. If the about the validity of IPR claims. If the licensing terms can be
licensing terms can be determined to be reasonable, then the IPR determined to be reasonable, then the IPR claims become much less
claims become much less important. important.
5.6 Licensing Terms 5.6 Licensing Terms
Licensing terms vary across a range from no license required at all Licensing terms vary across a range from no license required at all
to prohibitive. In general, working groups show a preference for to prohibitive. In general, working groups show a preference for
technologies with IPR considerations in approximately the following technologies with IPR considerations in approximately the following
order. This list does not constitute a rule, and every working group order. This list does not constitute a rule, and every working group
needs to take its own circumstances into account. needs to take its own circumstances into account.
o Technology which has been publicly disclosed for more than one
year, with no known IPR claims.
o Technology which has been publicly disclosed, with no known IPR
claims.
o IPR disclosed and licensed with no restrictions. o IPR disclosed and licensed with no restrictions.
o IPR licensed with no material restrictions, e.g. no trademark o IPR licensed with no material restrictions, e.g. no trademark
license required. license required.
o IPR licensed for a particular field of use but no other material o IPR licensed for a particular field of use but with no other
restrictions, e.g. licensed solely for implementations complying material restrictions, e.g. licensed solely for implementations
with a standard. complying with a standard.
o IPR licensed under openly-specified reasonable and o IPR licensed under royalty-free terms and reasonable and
non-discriminatory restrictions. This may include payment of a non-discriminatory restrictions.
royalty.
o IPR licensed under reasonable and non-discriminatory restrictions.
This may include payment of a royalty.
o IPR which is otherwise licensable. o IPR which is otherwise licensable.
o IPR which is not licensable, i.e. which is only available as an o IPR which is not licensable, i.e. which is only available as an
implementation. implementation.
o IPR which is not available under any conditions. 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
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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 disclosure that makes very any worse than those offered in an IPR disclosure that makes very
specific statements. Obviously, if an IPR claimant refuses to suggest specific statements. Obviously, if an IPR claimant refuses to suggest
any terms at all, the working group is going to have trouble any terms at all, the working group is going to have trouble
evaluating the future utility of the technology. evaluating the future utility of the technology.
There is class of restriction which involves "reciprocity", in which There is a class of restriction which involves "reciprocity", in
the technology may be used as long as the licensee allows the IPR which the IPR claimant's patented technology may be used by an
claimant to use the licensee's technology in the same area under implementer of the IETF standard ("licensee") as long as the licensee
comparable terms. A requirement for general reciprocity is also allows the IPR claimant to use the licensee's own patented technology
possible, under which the technology is made available for free as covering the standard under comparable terms (this could be called
long as the licensee does not enforce any IPR claims against the "bilateral" reciprocity). A "general" or "universal" reciprocity
licenser. restriction is also possible, under which the technology is made
available royalty-free as long as the licensee does not enforce any
IPR claims against the licenser.
Words such as "reasonable", "fair", and "non-discriminatory" have no Words such as "reasonable", "fair", and "non-discriminatory" have no
objective legal or financial definition. The actual licensing terms objective legal or financial definition. The actual licensing terms
can vary tremendously. Also, IPR claimants have occasionally can vary tremendously. Also, IPR claimants have occasionally
asserted that there were already sufficient licenses for a particular asserted that there were already sufficient licenses for a particular
technology to meet "reasonable" multisource and competitiveness technology to meet "reasonable" multisource and competitiveness
requirements and, hence, that refusing to grant any licenses to new requirements and, hence, that refusing to grant any licenses to new
applicants was both fair and nondiscriminatory. The best way to find applicants was both fair and non-discriminatory. The best way to
out what an IPR claimant really means by those terms is to ask, find out what an IPR claimant really means by those terms is to ask,
explicitly. It also helps to gather knowledge about licenses actually explicitly. It also helps to gather knowledge about licenses actually
issued, for that technology or for others, and about other issued, for that technology or for others, and about other
experiences with the IPR claimant. 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. Many employers of IETF participants know that toward less vagueness. Many employers of IETF participants know that
that IETF prefers explicit terms, and do feel pressure to produce that IETF prefers explicit terms, and do feel pressure to produce
them. them.
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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. In order for technology, they can possibly extrapolate from history. 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. they are willing to grant, at least in those two specific cases.
This sort of thing is weak but everything counts, and it may be of This sort of thing is weak but everything counts, and it may be of
some help. some help.
5.7 Third Party Disclosure In many jurisdictions that issue patents, inventors are required to
file patent applications within 12 months of public disclosure or use
of a novel method or process. Since many of these jurisdictions also
provide for publication of pending patent applications 18 months
after a patent application is filed, the ability to determine whether
or not claims have been made at all relating to a particular
technology increases 30 months (12 + 18) after the public disclosure
or use of that technology.
Formal procedures for third party disclosures are the same as those 5.7 Third-Party Disclosure of IPR Claims
outlined in [4]. However, anyone considering such a disclosure is
encouraged to engage in some preliminary exploration with the
affected working group(s) beforehand (see Section 5.7.1). Third party
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 Formal procedures for third-party disclosures are outlined in [3].
However, anyone considering such a disclosure is encouraged to engage
in some preliminary exploration with the affected working group(s)
beforehand (see Section 5.7.1). third-party 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 disclosure can be used, knowingly or unknowingly, to defocus and
distract the working group and hinder its progress. They should distract the working group and hinder its progress. They should
evaluate 3rd party disclosures accordingly. WG chairs should be evaluate 3rd party disclosures accordingly. WG chairs should be
willing and able to discipline those they think are using the third willing and able to discipline those they think are using the
party disclosure system inappropriately. Those who think they are third-party disclosure system inappropriately. Those who think they
being unfairly blocked may take the matter up with the Area Directors are being unfairly blocked may take the matter up with the Area
and/or the IESG. Directors and/or the IESG.
All of the criteria for evaluating IPR claims discussed in the All of the criteria for evaluating IPR claims discussed in the
sections above apply in the case of third party disclosures as well, sections above apply in the case of third-party disclosures as well,
to the extent they can be practiced. to the extent they can be practiced.
5.7.1 Third Party Disclosure Advice 5.7.1 Third-Party Disclosure Advice
This subsection provides advice to those considering making third This subsection provides advice to those considering making
party disclosures. While not strictly required, the actions third-party disclosures. While not strictly required, the actions
described here are encouraged to aid working groups in dealing with described here are encouraged to aid working groups in dealing with
the possible implications of third party disclosures. In evaluating the possible implications of third-party disclosures. In evaluating
what (if anything) to do in response to a third party disclosure, a 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 WG may consider the extent to which the discloser has followed this
advice (for example, in considering whether a disclosure is intended advice (for example, in considering whether a disclosure is intended
primarily to defocus and distract the WG). 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 chair(s) before saying anything publicly. After discussion with the
working group chairs, they should bring the issue to the attention of working group chair(s), the potential discloser should bring the
the working group, and to the attention of the IPR claimant if doing issue to the attention of the working group, and to the attention of
so is not too difficult. Such discussion should help the potential the IPR claimant if doing so is not too difficult. Such discussion
discloser to become more sure, one way or the other. If they are should help the potential discloser to become more sure, one way or
sure the discovered IPR claim applies, and the IPR claimant does not the other. If the potential discloser is sure the discovered IPR
submit a first party disclosure itself, then they are encouraged to claim applies, and the IPR claimant does not submit a first party
submit a third party disclosure. disclosure itself, then the potential disclosure is encouraged to
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 making a third-party disclosure should consider
other working groups might be affected, and communicate with them in what other working groups might be affected, and communicate with
the same manner. them in 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
issue. They can reference multiple claims or patents related to that specific issue. They can reference multiple claims or patents
issue. related to that issue.
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 claims are asserted against it or not. A working group
security considerations into account as one part of evaluating the should take those security considerations into account as one part of
technology, just as IPR is one part, but they are not issues of evaluating the technology, just as IPR is one part, but they are not
security with IPR procedures. issues of security with IPR procedures.
7. Acknowledgments
The editor would like to acknowledge the help of the IETF IPR Working
Group. The editor would also like to thank the following for their
extensive comments and suggestions: Robert Barr, David Black, Scott
Bradner, Jorge Contreras, Paul Gleichauf, Keith Moore, Russell
Nelson, Jon Peterson, Randy Presuhn, Pekka Savola, Valerie See, Bob
Wyman, and Joe Zebarth.
Normative References Normative References
[1] IETF, "IPR Working Group web page", 2002, <http://www.ietf.org/ [1] Kastenholz, F., "Variance for The PPP Connection Control
html.charters/ipr-charter.html>. Protocol and The PPP Encryption Control Protocol", BCP 3, RFC
1915, February 1996.
[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., "Intellectual Property Rights in IETF Technology",
Levels", BCP 14, RFC 2119, March 1997. draft-ietf-ipr-technology-rights-04 (work in progress), April
[4] Bradner, S., "Intellectual Property Rights in IETF Technology",
draft-ietf-ipr-technology-rights-01 (work in progress), February
2003. 2003.
[5] Bradner, S., "IETF Rights in Submissions", [4] Bradner, S., "IETF Rights in Submissions",
draft-ietf-ipr-submission-rights-01 (work in progress), February draft-ietf-ipr-submission-rights-04 (work in progress), April
2003. 2003.
Informative References Informative References
[5] Huitema, C. and P. Gross, "The Internet Standards Process --
Revision 2", RFC 1602, March 1994.
[6] Wu, T., "The SRP Authentication and Key Exchange System", RFC [6] Wu, T., "The SRP Authentication and Key Exchange System", RFC
2945, September 2000. 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
 End of changes. 

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