draft-ietf-ipr-wg-guidelines-03.txt   draft-ietf-ipr-wg-guidelines-04.txt 
IPR Working Group S. Brim IPR Working Group S. Brim
Internet-Draft Cisco Systems, Inc. Internet-Draft Cisco Systems, Inc.
Expires: October 21, 2003 April 22, 2003 Expires: November 26, 2003 May 28, 2003
Guidelines for Working Groups on Intellectual Property Issues Guidelines for Working Groups on Intellectual Property Issues
draft-ietf-ipr-wg-guidelines-03 draft-ietf-ipr-wg-guidelines-04
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.
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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://
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http://www.ietf.org/shadow.html. http://www.ietf.org/shadow.html.
This Internet-Draft will expire on October 21, 2003. This Internet-Draft will expire on November 26, 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 (Intellectual Property Rights)
examples of how IPR issues have been dealt with in the IETF. issues. It documents specific 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 PPP CCP and ECP . . . . . . . . . . . . . . . . . . . . . . 5 4.1 PPP CCP and ECP . . . . . . . . . . . . . . . . . . . . . . 5
4.2 IPS WG (IP Storage) . . . . . . . . . . . . . . . . . . . . 5 4.2 IPS WG (IP Storage) . . . . . . . . . . . . . . . . . . . . 5
4.3 PEM and PKI issues . . . . . . . . . . . . . . . . . . . . . 6 4.3 PEM and PKI issues . . . . . . . . . . . . . . . . . . . . . 6
4.4 CDI WG (Content Distribution Internetworking) . . . . . . . 7 4.4 CDI WG (Content Distribution Internetworking) . . . . . . . 7
4.5 VRRP (Virtual Router Redundancy Protocol) . . . . . . . . . 7 4.5 VRRP (Virtual Router Redundancy Protocol) . . . . . . . . . 7
4.6 Secure Shell (SecSH) . . . . . . . . . . . . . . . . . . . . 8 4.6 Secure Shell (SecSH) . . . . . . . . . . . . . . . . . . . . 8
4.7 IDN (Internationalized Domain Name) . . . . . . . . . . . . 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 . . . . . . . . . . . . . . . . . . 10 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 . . . . . . . . . . . 11
5.4 Patents versus Pending Patents Applied For . . . . . . . . . 11 5.4 Patents versus Pending Patents Applied For . . . . . . . . . 12
5.5 Applicability: It's Hard to Prove a Negative . . . . . . . . 12 5.5 Applicability: It's Hard to Prove a Negative . . . . . . . . 12
5.6 Licensing Terms . . . . . . . . . . . . . . . . . . . . . . 13 5.6 Licensing Terms . . . . . . . . . . . . . . . . . . . . . . 13
5.7 Third-Party Disclosure of IPR Claims . . . . . . . . . . . . 15 5.7 Third-Party Disclosure of IPR Claims . . . . . . . . . . . . 15
5.7.1 Third-Party Disclosure Advice . . . . . . . . . . . . . . . 15 5.7.1 Third-Party Disclosure Advice . . . . . . . . . . . . . . . 15
6. Security Considerations . . . . . . . . . . . . . . . . . . 16 6. Security Considerations . . . . . . . . . . . . . . . . . . 16
7. Acknowledgments . . . . . . . . . . . . . . . . . . . . . . 16 7. Acknowledgments . . . . . . . . . . . . . . . . . . . . . . 16
Normative References . . . . . . . . . . . . . . . . . . . . 16 Normative References . . . . . . . . . . . . . . . . . . . . 16
Informative References . . . . . . . . . . . . . . . . . . . 17 Informative References . . . . . . . . . . . . . . . . . . . 17
Author's Address . . . . . . . . . . . . . . . . . . . . . . 17 Author's Address . . . . . . . . . . . . . . . . . . . . . . 17
Intellectual Property and Copyright Statements . . . . . . . 18 Intellectual Property and Copyright Statements . . . . . . . 18
1. Introduction 1. Introduction
This memo lays out a conceptual framework and rules of thumb to This memo lays out a conceptual framework and rules of thumb to
assist working groups dealing with IPR issues. The goal is to assist working groups dealing with IPR issues. The goal is to
achieve a balance between the needs of IPR claimants and the achieve a balance between the needs of IPR claimants and the
implementers of the Internet which is appropriate to current times. implementers of IETF standards which is appropriate to current times.
As part of trying to distill out principles for dealing with IPR in As part of trying to distill out principles for dealing with IPR in
IETF working groups, it provides case studies of working group IPR IETF working groups, it provides case studies of working group IPR
treatment. In other words, it documents the running code of the IETF treatment. In other words, it documents the 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 submission
IETF [3] and submission rights [4]. Rather, this memo is for working rights [5] and IPR in the IETF [6]. Rather, this memo is for working
groups that are trying to decide what to do about technology groups that are trying to decide what to do about technology
contributions which have associated IPR claims. 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-impacted technology was anathema, has never recognized that that IPR-impacted technology was anathema, has never recognized that
the Internet has run on IPR-impacted technologies from the beginning. the Internet has run on IPR-impacted technologies from the beginning.
Nowadays the majority of the useful technologies brought to the IETF Nowadays the majority of the useful technologies brought 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 impacted 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-impacted. It is not always the wrong decision to area that is not IPR-impacted. It is not always the wrong decision
select IPR-impacted technology, if the choice is made knowingly, to 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 issues, 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
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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. The goal is to give The goal of this memo is not to make rules. The goal is to give
working groups as much information as possible to make informed working groups as much information as possible to make informed
decisions, and then step out of the way. The other IPR working group decisions, and then step out of the way. The other IPR working group
memos [3][4] lay out what needs to be done once a particular piece of memos [5][6] lay out what needs to be done once a particular piece
technology is selected as a working group draft. However, this of technology is selected as a working group draft. However, this
doesn't help when a working group is trying to decide whether or not doesn't help when a working group is trying to decide whether or not
to select a technology in the first place. This third memo is written to select a technology in the first place. This third memo is written
to help in making that decision. We want to build a conceptual to help in making that decision. We want to build a conceptual
framework, a new set of "common knowledge", to make it easier for framework, a new set of "common knowledge", to make it easier for
working groups to deal with intellectual property issues. working groups to deal with intellectual property issues.
To do so, we first present a number of "case studies" in Section 4 -- To do so, we first present a number of "case studies" in Section 4 --
real events that have happened in recent years, and how different real events that have happened in recent years, and how different
working groups dealt with them -- plus notes on possible lessons to working groups dealt with them -- plus notes on possible lessons to
be learned. In Section 5, we expand on these lessons and try to be learned. In Section 5, we expand on these lessons and try to
extract general 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 the important
important ones. ones.
4.1 PPP CCP and ECP 4.1 PPP CCP and ECP
The PPP Working Group adopted technology for PPP's Connection Control The PPP Working Group adopted technology for PPP's Connection Control
Protocol and Encryption Control Protocol which it knew was patented. Protocol and Encryption Control Protocol about which an IPR
They indicated to the IESG that they believed the patented technology disclosure had been received. They indicated to the IESG that they
was the best approach, and was better than no standards at all. believed the patented technology was the best approach, and was
better than no standards at all.
At that time, under the policies documented in RFC 1602 [5] (the At that time, under the policies documented in RFC 1602 [1] (the
precursor to RFC 2026), progress on any standard was to stop at the precursor to RFC 2026), progress on any standard was to stop at the
Proposed Standard phase until specific assurances about licensing Proposed Standard phase until specific assurances about licensing
terms could be obtained from all IPR claimants. However, as terms could be obtained from all IPR claimants. However, as
described in RFC 1915 [1], in the case of PPP ECP and CCP, the IPR described in RFC 1915 [3], in the case of PPP ECP and CCP, the IPR
claimant balked at the requirement for specific assurances. claimant balked at the requirement for specific assurances.
Finally, with support from the working group, a variance was granted In the end, with support from the working group, the variance
to the RFC 1602 procedures. If it hadn't been granted, the ECP and procedure described in RFC 1871 [2] was followed to grant an
CCP standards could have been blocked permanently. exception to the RFC 1602 requirements. If it had not been granted,
the ECP and CCP standards could have been blocked permanently.
Lessons: Lessons:
o IPR claimants, even when their intentions are good, may strongly o IPR claimants, even when their intentions are good, may strongly
resist being forced to make specific public statements about resist being forced to make specific public statements about
licensing terms. If explicit statements of licensing terms are licensing terms. If explicit statements of licensing terms are
required, then the publicly stated terms will probably be required, then the publicly stated terms will probably be
"worst-case", which would provide little useful information. "worst-case", which would provide little useful information.
4.2 IPS WG (IP Storage) 4.2 IPS WG (IP Storage)
The IPS (IP Storage) Working Group evaluated technology developed The IPS (IP Storage) Working Group evaluated technology developed
outside of the working group, "secure remote password" (SRP, RFC 2945 outside of the working group, "secure remote password" (SRP, RFC 2945
[6]). At the time, there was one known IPR claim, and the proposed [7]). At the time, there was one known IPR claim, and the proposed
licensing terms were apparently reasonable. SRP had become a licensing terms were apparently reasonable. SRP had become a
proposed standard without going through any working group, so IETF proposed standard without going through any working group, so IETF
participants may have been less likely to notice it in order to make 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 statements about IPR. In any case, two more possible IPR claims were
uncovered after the IPS working group had already decided to make SRP uncovered after the IPS working group had already decided to make SRP
required. One of the possible IPR claimants did not make a strong 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 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 whether it actually had a claim, though it acknowledged it might have
a claim. In both cases it was difficult to obtain concrete a claim. In both cases it was difficult to obtain concrete
information on possible licensing terms, even though words like information on possible licensing terms, even though words like
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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.
4.3 PEM and PKI issues 4.3 PEM and PKI issues
PEM (Privacy-Enhanced Mail) wanted to use public key technology. In The PEM (Privacy-Enhanced Mail) Working Group wanted to use public
the mid-90s, the basic principles of public key infrastructure had key technology. In the mid-90s, the basic principles of public key
been patented for years. The patent holder had shown a tendency to infrastructure had been patented for years. The patent holder had
actively enforce its rights, and to prefer software sales to shown a tendency to actively enforce its rights, and to prefer
licensing. This was seen as a significant potential issue, one which software sales to licensing. This was seen as a significant
could possibly interfere with the easy deployment of Internet potential issue, one which could possibly interfere with the easy
technology. However, there was no alternative technology that came deployment of Internet technology. However, there was no alternative
close to its capabilities. Adopting an alternative would have technology that came close to its capabilities. Adopting an
damaged the standard's usefulness even more than adopting a alternative would have damaged the standard's usefulness even more
technology with IPR claims. The case was so compelling that the than adopting a technology with IPR claims. The case was so
working group participants decided to move forward on standardizing compelling that the working group participants decided to move
it and even requiring it. forward on standardizing 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 patents would expire within a few years. That meant that although the patents
might be significant to start with, they would not be in the long might be significant to start with, they would not be in the long
run. This lowered the perceived risk of using the IPR-impacted 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.
4.4 CDI WG (Content Distribution Internetworking) 4.4 CDI WG (Content Distribution Internetworking)
The CDI (Content Distribution Internetworking) Working Group laid out The CDI (Content Distribution Internetworking) Working Group laid out
an overall architecture and found that a number of included an overall architecture and found that a number of related
technologies had IPR claims associated with them, based on work done technologies had IPR claims associated with them, based on work done
before the working group was started. The working group participants before the working group was started. The working group participants
decided there was little chance of producing alternative technologies decided there was little chance of producing alternative technologies
which were as useful and which did not run up against these IPR which were as useful and which did not run up against these IPR
claims. As usual, there was no good way to evaluate claims and claims. As usual, there was no good way to evaluate claims and
possible licensing terms until after the technology had been possible licensing terms until after the technology had been
completely specified (at the earliest). completely specified (at the earliest).
However, working group participants generally thought they had a good However, working group participants generally thought they had a good
idea what to expect from each other with regard to licensing, and in idea what to expect from each other with regard to licensing, and in
fact expected few if any problems. The expected risks were low fact expected few if any problems. The expected risks were low
enough that they thought the ultimate benefits of using the enough that they thought the ultimate benefits of using the patented
technologies outweighed the expected burden of the IPR issues. The technologies outweighed the expected burden of the IPR issues. The
working group participants decided they did not need to consider IPR working group participants decided they did not need to consider IPR
as an issue in determining which technologies to adopt. as an issue in determining which technologies to adopt.
Lessons: Lessons:
o Past experience with patent claimants can be used as a significant o Past experience with patent claimants can be used as a significant
factor in evaluating the possible impact of IPR. It can lead to factor in evaluating the possible impact of IPR. It can lead to
enough mutual trust that concerns about licensing terms do not enough mutual trust that concerns about licensing terms do not
slow the working group down. slow the working group down.
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In one case, an IPR claimant 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 that they need not working group's developing technology, and decided that they need not
be concerned about the claims. This was reflected in the direction be concerned about the claims. This was reflected in the direction
the group as a whole 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, rather than vice versa (or independent derived from working group discussion, rather than vice versa (or
discovery). The claimants were known to be following the WG's work independent discovery). The claimants were known to be following the
when the ideas were proposed, and their patent filing was working group's work when the ideas were proposed, and their patent
considerably subsequent to that time. filing was 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 the IPR claimant in
get an explicit statement of licensing terms, preferably order to 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
which WG activities were seen as infringing on the patent, and at which working group activities were seen as infringing on the patent,
least some understanding of the IPR claimant's intentions and and at least some understanding of the IPR claimant's intentions and
philosophy. Since the patent holder seemed to have an interest in philosophy. Since the patent holder seemed to have an interest in
using the patent for profit, the group discussed the issues on its using the patent for profit, the group discussed the issues on its
mailing list. They overtly talked about how they could change their mailing list. They overtly talked about how they could change their
proposed technology to avoid having to contest the patent, and the proposed technology to avoid having to contest the patent, and the
extent to which the patent might be countered by claims of prior art. extent to which the patent might be countered by claims of prior art.
Meanwhile, individually they were talking to their legal advisors. Meanwhile, individually they were talking to their legal advisors.
Gradually, a collective opinion formed that the working group Gradually, a collective opinion formed that the working group
documents did not infringe on the patent. Since then, the patent has documents did not infringe on the patent. Since then, the patent has
been ignored. However, they are keeping a watchful eye out for been ignored. However, they are keeping a watchful eye out for
continuation patents which might have already been submitted. continuation patents which might have already been submitted.
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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, there 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. Every working group needs
group needs to develop and follow its own consensus, and actual to develop and follow its own consensus, and actual treatments will
treatments will vary as much as they have in the past. However, every vary as much as they have in the past. However, every working group
working group also needs to take IPR seriously, and follow these also needs to take IPR seriously, and consider the needs of the
general principles. Internet community and the public at large, including possible future
implementers and users who will not have participated in the working
group process when the standardization is taking place.
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][3][4]. For and redundant with other Working Group documents [4][5][6]. 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. Service marks indicate o Trademarks indicate the sources of goods. Service marks 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
expire but they can be renewed. expire but they can be renewed.
o Patents protect "inventions". They expire (utility patents expire o Patents protect "inventions". They expire (utility patents expire
after 20 years), but follow-on patents can cover similar after 20 years), but follow-on patents can cover similar
technologies and can have nearly the same implications for use in technologies and can have nearly the same implications for use in
the Internet as the original patents. the Internet as the original patents.
5.2 When to think about IPR 5.2 When to Think About IPR
This memo does not describe IPR procedures for document authors or This memo does not describe IPR procedures for document authors or
IPR claimants. Rather, this memo is for working groups that are IPR claimants. Rather, this memo is for working group participants
trying to decide what to do about IPR claims related to their work. who are trying to decide what to do about IPR claims related to their
A working group as a whole needs to think about IPR issues: work. A working group as a whole needs to think about IPR issues:
o when examining a technology, and deciding whether to initiate work o when examining a technology, and deciding whether to initiate work
on it. on it.
o when deciding whether to adopt a draft as a working group o when deciding whether to adopt a draft as a working group
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.
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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 knowledge of IPR claims may therefore depend upon evaluated. A working group's knowledge of IPR claims may therefore
when a claimant steps forward during the course of a WG's depend upon when a claimant steps forward during the course of a
deliberations. working group'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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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-impacted -- we use IPR-impacted 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 what are the terms under which the technology can be used? When
When technology is free from IPR protection the answer is easy. When technology is free from IPR protection the answer is easy. When it
it is IPR-impacted, some terms make the IPR issues insignificant is IPR-impacted, some licensing terms make the IPR issues
compared to the engineering issues. Other terms can make a insignificant compared to the engineering issues. Other terms can
technology unusable even if it is perfect otherwise. make a 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 in order to use whatever legal advice resources they have access to in order to
form their own individual opinions. Discussions about the validity form their own individual opinions. Discussions about the validity
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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 prove that it is not not covered by a particular IPR claim, let alone prove that it is not
covered by any IPR claim. Anything a working group adopts may, in covered by any IPR claim. Anything a working group adopts may, in
the future, turn out to be IPR-impacted, although the IPR claim may the future, turn out to be IPR-impacted, although the IPR claim 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 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 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. licensing terms often do not than the validity of the IPR claims. licensing terms often do not
limit the usefulness of the technology. It is difficult to be sure limit the usefulness of the technology. It is difficult to be sure
about the validity of IPR claims. If the licensing terms can be about the validity of IPR claims. If the licensing terms can be
determined to be reasonable, then the IPR claims become much less determined to be reasonable, then the IPR 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 IPR disclosed and licensed with no restrictions. o License not required.
o 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 with no other o IPR licensed for a particular field of use but with no other
material restrictions, e.g. licensed solely for implementations material restrictions, e.g. licensed solely for implementations
complying with a standard. complying with a standard.
o IPR licensed under royalty-free terms and reasonable and o IPR licensed under royalty-free terms and reasonable and
non-discriminatory restrictions. non-discriminatory restrictions.
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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
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 disclosure that makes very any worse than those offered if an IPR disclosure makes very specific
specific statements. Obviously, if an IPR claimant refuses to suggest statements. Obviously, if an IPR claimant refuses to suggest any
any terms at all, the working group is going to have trouble terms at all, the working group is going to have trouble evaluating
evaluating the future utility of the technology. the future utility of the technology.
There is a class of restriction which involves "reciprocity", in There is a class of restriction which involves "reciprocity", in
which the IPR claimant's patented technology may be used by an which intellectual property may be licensed if the licensee is
implementer of the IETF standard ("licensee") as long as the licensee willing to license its intellectual property in return. The
allows the IPR claimant to use the licensee's own patented technology specificity of such agreements can vary, and the same or similar
covering the standard under comparable terms (this could be called terms may be required. Another potential licensing restriction is
"bilateral" reciprocity). A "general" or "universal" reciprocity defensive suspension, where a licensor may revoke or suspend the
restriction is also possible, under which the technology is made license if the licensee asserts a patent claim against the licensor.
available royalty-free as long as the licensee does not enforce any For interpretation of any particular reciprocity or related issue,
IPR claims against the licenser. consult your legal adviser.
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 non-discriminatory. The best way to applicants was both fair and non-discriminatory. The best way to
find 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 the IETF prefers explicit terms, and do feel pressure to 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. 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 specific cases. This
This sort of thing is weak but everything counts, and it may be of sort of thing is weak but everything counts, and it may be of some
some help. help.
In many jurisdictions that issue patents, inventors are required to In many jurisdictions that issue patents, inventors are required to
file patent applications within 12 months of public disclosure or use file patent applications within 12 months of public disclosure or use
of a novel method or process. Since many of these jurisdictions also of a novel method or process. Since many of these jurisdictions also
provide for publication of pending patent applications 18 months provide for publication of pending patent applications 18 months
after a patent application is filed, the ability to determine whether after a patent application is filed, the ability to determine whether
or not claims have been made at all relating to a particular or not claims have been made at all relating to a particular
technology increases 30 months (12 + 18) after the public disclosure technology increases 30 months (12 + 18) after the public disclosure
or use of that technology. or use of that technology.
5.7 Third-Party Disclosure of IPR Claims 5.7 Third-Party Disclosure of IPR Claims
Formal procedures for third-party disclosures are outlined in [3]. It is good to notify the IETF of relevant IPR claims even when they
However, anyone considering such a disclosure is encouraged to engage are not one's own, and [6] says to do so "as soon as possible".
in some preliminary exploration with the affected working group(s) However, anyone considering such a disclosure should do some
beforehand (see Section 5.7.1). third-party disclosure is a potential preliminary exploration with the affected working group(s) beforehand
denial of service threat to the working group, and therefore it is (see Section 5.7.1). Third-party disclosure is a potential denial of
good form to proceed slowly. service threat to the working group, and therefore it is good form to
proceed slowly at first.
Working group participants should be aware that third-party 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 third party disclosures accordingly. Working group chairs
willing and able to discipline those they think are using the should be willing and able to discipline those they think are using
third-party disclosure system inappropriately. Those who think they the third-party disclosure system inappropriately. Those who think
are being unfairly blocked may take the matter up with the Area they are being unfairly blocked may take the matter up with the Area
Directors 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 This subsection provides advice to those considering making
third-party disclosures. While not strictly required, the actions third-party disclosures. While not required, the actions described
described here are encouraged to aid working groups in dealing with here are encouraged to aid working groups in dealing with the
the possible implications of third-party disclosures. In evaluating possible implications of third-party disclosures. In evaluating what
what (if anything) to do in response to a third-party disclosure, a (if anything) to do in response to a third-party disclosure, a
WG may consider the extent to which the discloser has followed this working group may consider the extent to which the discloser has
advice (for example, in considering whether a disclosure is intended followed this advice (for example, in considering whether a
primarily to defocus and distract the WG). disclosure is intended primarily to defocus and distract the working
group).
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
chair(s) before saying anything publicly. After discussion with the chair(s) before saying anything publicly. After discussion with the
working group chair(s), the potential discloser should bring the working group chair(s), the potential discloser should bring the
issue to the attention of the working group, and to the attention of issue to the attention of the working group, and to the attention of
the IPR claimant if doing so is not too difficult. Such discussion the IPR claimant if doing so is not too difficult. Such discussion
should help the potential discloser to become more sure, one way or should help the potential discloser to become more sure, one way or
the other. If the potential discloser is sure the discovered IPR the other. If the potential discloser is sure the discovered IPR
claim applies, and the IPR claimant does not submit a first party claim applies, and the IPR claimant does not submit a first-party
disclosure itself, then the potential disclosure is encouraged to disclosure itself, then the potential discloser is encouraged 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 making a third-party disclosure should consider A person thinking of making a third-party disclosure should consider
what other working groups might be affected, and communicate with what other working groups might be affected, and communicate with
them in 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 working group is focusing at that time. Don't bring IPR claims to
attention just in case it might go there in a few months, only if it the working group's attention just in case they might be relevant in
has implications for current work. Messages to the working group list a few months, but only if they have implications for current work.
should be substantive, and a single message should focus on a Messages to the working group list should be substantive, and a
specific issue. They can reference multiple claims or patents single message should focus on a specific issue. They can reference
related to that issue. multiple claims or patents 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 claims are asserted against it or not. A working group whether IPR claims are asserted against it or not. A working group
should take those security considerations into account as one part of should take those security considerations into account as one part of
evaluating the technology, just as IPR is one part, but they are not evaluating the technology, just as IPR is one part, but they are not
issues of security with IPR procedures. issues of security with IPR procedures.
7. Acknowledgments 7. Acknowledgments
The editor would like to acknowledge the help of the IETF IPR Working The author would like to acknowledge the help of the IETF IPR Working
Group. The editor would also like to thank the following for their Group. The author would also like to thank the following for their
extensive comments and suggestions: Robert Barr, David Black, Scott extensive comments and suggestions: Robert Barr, David Black, Scott
Bradner, Jorge Contreras, Paul Gleichauf, Keith Moore, Russell Bradner, Jorge Contreras, Paul Gleichauf, Keith Moore, Russell
Nelson, Jon Peterson, Randy Presuhn, Pekka Savola, Valerie See, Bob Nelson, Jon Peterson, Randy Presuhn, Pekka Savola, Valerie See, Bob
Wyman, and Joe Zebarth. Wyman, and Joe Zebarth.
Normative References Normative References
[1] Kastenholz, F., "Variance for The PPP Connection Control [1] Huitema, C. and P. Gross, "The Internet Standards Process --
Revision 2", RFC 1602, March 1994.
[2] Postel, J., "Addendum to RFC 1602 -- Variance Procedure", BCP 2,
RFC 1871, November 1995.
[3] Kastenholz, F., "Variance for The PPP Connection Control
Protocol and The PPP Encryption Control Protocol", BCP 3, RFC Protocol and The PPP Encryption Control Protocol", BCP 3, RFC
1915, February 1996. 1915, February 1996.
[2] Bradner, S., "The Internet Standards Process -- Revision 3", BCP [4] Bradner, S., "The Internet Standards Process -- Revision 3", BCP
9, RFC 2026, October 1996. 9, RFC 2026, October 1996.
[3] Bradner, S., "Intellectual Property Rights in IETF Technology", [5] Bradner, S., "IETF Rights in Submissions",
draft-ietf-ipr-technology-rights-04 (work in progress), April draft-ietf-ipr-submission-rights-04 (work in progress), April
2003. 2003.
[4] Bradner, S., "IETF Rights in Submissions", [6] Bradner, S., "Intellectual Property Rights in IETF Technology",
draft-ietf-ipr-submission-rights-04 (work in progress), April draft-ietf-ipr-technology-rights-06 (work in progress), May
2003. 2003.
Informative References Informative References
[5] Huitema, C. and P. Gross, "The Internet Standards Process -- [7] Wu, T., "The SRP Authentication and Key Exchange System", RFC
Revision 2", RFC 1602, March 1994.
[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
USA USA
 End of changes. 

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