draft-ietf-ipr-wg-guidelines-05.txt   rfc3669.txt 
IPR Working Group S. Brim Network Working Group S. Brim
Internet-Draft Cisco Systems, Inc. Request for Comments: 3669 Cisco Systems, Inc.
Expires: December 10, 2003 June 11, 2003 Updates: 2026 February 2004
Category: Informational
Guidelines for Working Groups on Intellectual Property Issues Guidelines for Working Groups on Intellectual Property Issues
draft-ietf-ipr-wg-guidelines-05
Status of this Memo Status of this Memo
This document is an Internet-Draft and is in full conformance with This memo provides information for the Internet community. It does
all provisions of Section 10 of RFC2026. not specify an Internet standard of any kind. Distribution of this
memo is unlimited.
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This Internet-Draft will expire on December 10, 2003.
Copyright Notice Copyright Notice
Copyright (C) The Internet Society (2003). All Rights Reserved. Copyright (C) The Internet Society (2004). 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 (Intellectual Property Rights) for working groups dealing with Intellectual Property Rights (IPR)
issues. It documents specific examples of how IPR issues have been issues. It documents specific examples of how IPR issues have been
dealt with in the IETF. dealt with in the IETF.
Table of Contents Table of Contents
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . 3 1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. The Problem . . . . . . . . . . . . . . . . . . . . . . . . 3 2. The Problem . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. The Approach . . . . . . . . . . . . . . . . . . . . . . . . 4 3. The Approach . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Case Studies . . . . . . . . . . . . . . . . . . . . . . . . 5 4. Case Studies . . . . . . . . . . . . . . . . . . . . . . . . . 4
4.1 PPP CCP and ECP . . . . . . . . . . . . . . . . . . . . . . 5 4.1. PPP CCP and ECP. . . . . . . . . . . . . . . . . . . . . 4
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 . . . . . . . . . . . . . . . . . . . 5
4.4 VRRP (Virtual Router Redundancy Protocol) . . . . . . . . . 7 4.4. VRRP (Virtual Router Redundancy Protocol). . . . . . . . 6
4.5 Secure Shell (SecSH) . . . . . . . . . . . . . . . . . . . . 7 4.5. Secure Shell (SecSH) . . . . . . . . . . . . . . . . . . 6
4.6 IDN (Internationalized Domain Name) . . . . . . . . . . . . 7 4.6. IDN (Internationalized Domain Name). . . . . . . . . . . 7
5. General Principles . . . . . . . . . . . . . . . . . . . . . 9 5. General Principles . . . . . . . . . . . . . . . . . . . . . . 8
5.1 Types of IPR . . . . . . . . . . . . . . . . . . . . . . . . 9 5.1. Types of IPR . . . . . . . . . . . . . . . . . . . . . . 8
5.2 When to Think About IPR . . . . . . . . . . . . . . . . . . 9 5.2. When to Think About IPR. . . . . . . . . . . . . . . . . 9
5.3 IPR as a Technology Evaluation Factor . . . . . . . . . . . 10 5.3. IPR as a Technology Evaluation Factor. . . . . . . . . . 9
5.4 Patents versus Pending Patents Applied For . . . . . . . . . 11 5.4. Patents versus Pending Patents Applied For . . . . . . . 10
5.5 Applicability: It's Hard to Prove a Negative . . . . . . . . 11 5.5. Applicability: It's Hard to Prove a Negative . . . . . . 11
5.6 Licensing Terms . . . . . . . . . . . . . . . . . . . . . . 12 5.6. Licensing Terms. . . . . . . . . . . . . . . . . . . . . 12
5.7 Third-Party Disclosure of IPR Claims . . . . . . . . . . . . 14 5.7. Third-Party Disclosure of IPR Claims . . . . . . . . . . 14
5.7.1 Third-Party Disclosure Advice . . . . . . . . . . . . . . . 15 5.7.1 Third-Party Disclosure Advice. . . . . . . . . . . 14
6. Security Considerations . . . . . . . . . . . . . . . . . . 15 6. Security Considerations. . . . . . . . . . . . . . . . . . . . 15
7. Acknowledgments . . . . . . . . . . . . . . . . . . . . . . 16 7. Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . 15
Normative References . . . . . . . . . . . . . . . . . . . . 16 8. References . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Informative References . . . . . . . . . . . . . . . . . . . 16 8.1. Normative References . . . . . . . . . . . . . . . . . . 15
Author's Address . . . . . . . . . . . . . . . . . . . . . . 17 8.2. Informative References . . . . . . . . . . . . . . . . . 16
Intellectual Property and Copyright Statements . . . . . . . 18 9. Author's Address . . . . . . . . . . . . . . . . . . . . . . . 16
10. Full Copyright Statement . . . . . . . . . . . . . . . . . . . 17
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 IETF standards 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
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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 [5][6] 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 of
technology is selected as a working group draft. However, this 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
to help in making that decision. We want to build a conceptual written to help in making that decision. We want to build a
framework, a new set of "common knowledge", to make it easier for conceptual framework, a new set of "common knowledge", to make it
working groups to deal with intellectual property issues. easier for 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 "case studies" in Section 4 -- real events
that have happened in recent years, and how different working groups that have happened in recent years, and how different working groups
dealt with them -- plus notes on possible lessons to be learned. In dealt with them -- plus notes on possible lessons to be learned. In
Section 5, we expand on these lessons and try to extract general Section 5, we expand on these lessons and try to extract general
principles. 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 the important extracted from other cases, but the cases below cover the important
ones. ones.
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principles. 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 the important extracted from other cases, but the cases below cover the 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 about which an IPR Protocol and Encryption Control Protocol about which an IPR
disclosure had been received. They indicated to the IESG that they disclosure had been received. They indicated to the IESG that they
believed the patented technology was the best approach, and was believed the patented technology was the best approach, and was
better than no standards at all. better than no standards at all.
At that time, under the policies documented in RFC 1602 [1] (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
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the ECP and CCP standards could have been blocked permanently. 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
[7]). 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
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otherwise, very seriously, and decided not to use SRP after all, even otherwise, very seriously, and decided not to use SRP after all, even
though they had already chosen it based on other criteria. 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.
4.3 PEM and PKI issues 4.3. PEM and PKI issues
The PEM (Privacy-Enhanced Mail) Working Group wanted to use public The PEM (Privacy-Enhanced Mail) Working Group wanted to use public
key technology. In the mid-90s, the basic principles of public key key technology. In the mid-90s, the basic principles of public key
infrastructure had been patented for years. The patent holder had infrastructure had been patented for years. The patent holder had
shown a tendency to actively enforce its rights, and to prefer shown a tendency to actively enforce its rights, and to prefer
software sales to licensing. This was seen as a significant software sales to licensing. This was seen as a significant
potential issue, one which could possibly interfere with the easy potential issue, one which could possibly interfere with the easy
deployment of Internet technology. However, there was no alternative deployment of Internet technology. However, there was no alternative
technology that came close to its capabilities. Adopting an technology that came close to its capabilities. Adopting an
alternative would have damaged the standard's usefulness even more alternative would have damaged the standard's usefulness even more
than adopting a technology with IPR claims. The case was so than adopting a technology with IPR claims. The case was so
compelling that the working group participants decided to move compelling that the working group participants decided to move
forward on standardizing 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
might be significant to start with, they would not be in the long patents might be significant to start with, they would not be in the
run. This lowered the perceived risk of using the IPR-impacted long 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 VRRP (Virtual Router Redundancy Protocol) 4.4. VRRP (Virtual Router Redundancy Protocol)
The working group was standardizing VRRP based on a protocol The working group was standardizing VRRP based on a protocol
developed outside the IETF. The IPR claimant supported that protocol developed outside the IETF. The IPR claimant supported that protocol
and stated that it would license its IPR for that protocol if it and stated that it would license its IPR for that protocol if it
became the standard, but not for the similar protocol the working became the standard, but not for the similar protocol the working
group was developing. The working group participants decided to go group was developing. The working group participants decided to go
ahead and standardize 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 they went ahead with their choice of protocol. the IPR claim when they went ahead with their choice of protocol.
Lessons: Lessons:
o IPR claims should never be disregarded without good cause. Due o IPR claims should never be disregarded without good cause. Due
diligence should be done to understand the consequences of each diligence should be done to understand the consequences of each
claim. claim.
4.5 Secure Shell (SecSH) 4.5. Secure Shell (SecSH)
This is primarily an unfinished trademark issue, not a patent issue, This is primarily an unfinished trademark issue, not a patent issue,
since the patent issue has been worked out outside of the IETF. The since the patent issue has been worked out outside of the IETF. The
holder of a trademark wants the IETF to stop using "SSH" in the names holder of a trademark wants the IETF to stop using "SSH" in the names
and bodies of its proposed standards. The working group participants and bodies of its proposed standards. The working group participants
have thought through the details of the claims, and possible have thought through the details of the claims, and possible
implications and risks, and decided to go ahead and continue using implications and risks, and decided to go ahead and continue using
the names as they are now. 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) 4.6. IDN (Internationalized Domain Name)
The IDN Working Group dealt with a number of IPR claims. Several were The IDN Working Group dealt with a number of IPR claims. Several
made which did not overlap with the technology -- the IPR claimants were made which did not overlap with the technology -- the IPR
said the patents were being announced just in case the working group claimants said the patents were being announced just in case the
decided to go that way. In one case, even though a patent was working group decided to go that way. In one case, even though a
announced as purely defensive, many working group participants patent was announced as purely defensive, many working group
investigated the claims themselves. They concluded that it did not participants investigated the claims themselves. They concluded that
overlap. it did not overlap.
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
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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. Every working group needs groups can start with in dealing with IPR. Every working group needs
to develop and follow its own consensus, and actual treatments will to develop and follow its own consensus, and actual treatments will
vary as much as they have in the past. However, every working group vary as much as they have in the past. However, every working group
also needs to take IPR seriously, and consider the needs of the also needs to take IPR seriously, and consider the needs of the
Internet community and the public at large, including possible future Internet community and the public at large, including possible future
implementers and users who will not have participated in the working implementers and users who will not have participated in the working
group process when the standardization is taking place. 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 [4][5][6]. 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 group participants IPR claimants. Rather, this memo is for working group participants
who are trying to decide what to do about IPR claims related to their who are trying to decide what to do about IPR claims related to their
work. 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
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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. A working group's knowledge of IPR claims may therefore evaluated. A working group's knowledge of IPR claims may therefore
depend upon when a claimant steps forward during the course of a depend upon when a claimant steps forward during the course of a
working group's 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
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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
of IPR may take place under the auspices of the working group, in of IPR may take place under the auspices of the working group, in
particular about relative risks of technology choices. Individual particular about relative risks of technology choices. Individual
participants may take these discussions into account. The working participants may take these discussions into account. The working
group as a body may not take a stance on validity, but it may make group as a body may not take a stance on validity, but it may make
choices based on 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 IETF disclosure of the patent number and possibly the relevant IETF
document sections, which will allow working group participants to document sections, which will allow working group participants to
explore details of the claims. If a patent has not yet been granted explore details of the claims. If a patent has not yet been granted
(or if knowledge of the patent is restricted, e.g. for security (or if knowledge of the patent is restricted, e.g., for security
reasons), significantly less information is available. In most reasons), significantly less information is available. In most
countries patent applications are published 18 months after they are countries patent applications are published 18 months after they are
filed, but in the USA that can be avoided if the applicant does not filed, but in the USA that can be avoided if the applicant does not
also file outside the USA. In some countries applications are a also file outside the USA. In some countries applications are a
matter of public record, but details of pending claims can be matter of public record, but details of pending claims can be
modified at any time by the claim submitter before the patent is modified at any time by the claim submitter before the patent is
granted. It is not known before then what rights will actually be granted. It is not known before then what rights will actually be
granted. Finally, rights can be contested in court, and nothing is granted. Finally, rights can be contested in court, and nothing is
final until the courts decide -- perhaps not even then. All the IETF final until the courts decide -- perhaps not even then. All the IETF
can expect regarding a pending patent is disclosure that it exists, can expect regarding a pending patent is disclosure that it exists,
the related IETF documents, and possibly the relevant IETF document the related IETF documents, and possibly the relevant IETF document
sections and some statement 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
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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 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. 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 License not required. o License not required.
o IPR licensed with no restrictions. o IPR 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.
o IPR licensed under reasonable and non-discriminatory restrictions. o IPR licensed under reasonable and non-discriminatory restrictions.
This may include payment of a royalty. 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
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.
skipping to change at page 13, line 50 skipping to change at page 13, line 19
consult your legal adviser. 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
issued, for that technology or for others, and about other actually 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
the 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
skipping to change at page 14, line 33 skipping to change at page 14, line 5
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
It is good to notify the IETF of relevant IPR claims even when they It is good to notify the IETF of relevant IPR claims even when they
are not one's own, and [6] says to do so "as soon as possible". are not one's own, and [6] says to do so "as soon as possible".
However, anyone considering such a disclosure should do some However, anyone considering such a disclosure should do some
preliminary exploration with the affected working group(s) beforehand preliminary exploration with the affected working group(s) beforehand
(see Section 5.7.1). Third-party disclosure is a potential denial of (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 service threat to the working group, and therefore it is good form to
proceed slowly at first. proceed slowly at first.
Working group participants should be aware that third-party Working group participants should be aware that third-party
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evaluate third-party disclosures accordingly. Working group chairs evaluate third-party disclosures accordingly. Working group chairs
should be willing and able to discipline those they think are using should be willing and able to discipline those they think are using
the third-party disclosure system inappropriately. Those who think the third-party disclosure system inappropriately. Those who think
they 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 required, the actions described third-party disclosures. While not required, the actions described
here are encouraged to aid working groups in dealing with the here are encouraged to aid working groups in dealing with the
possible implications of third-party disclosures. In evaluating what possible implications of third-party disclosures. In evaluating 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
working group may consider the extent to which the discloser has working group may consider the extent to which the discloser has
followed this advice (for example, in considering whether a followed this advice (for example, in considering whether a
disclosure is intended primarily to defocus and distract the working disclosure is intended primarily to defocus and distract the working
group). group).
skipping to change at page 16, line 17 skipping to change at page 15, line 36
7. Acknowledgments 7. Acknowledgments
The author 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 author 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 8. References
8.1. Normative References
[1] Huitema, C. and P. Gross, "The Internet Standards Process -- [1] Huitema, C. and P. Gross, "The Internet Standards Process --
Revision 2", RFC 1602, March 1994. Revision 2", RFC 1602, March 1994.
[2] Postel, J., "Addendum to RFC 1602 -- Variance Procedure", BCP 2, [2] Postel, J., "Addendum to RFC 1602 -- Variance Procedure", BCP 2,
RFC 1871, November 1995. RFC 1871, November 1995.
[3] Kastenholz, F., "Variance for The PPP Connection Control [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.
[4] 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.
[5] Bradner, S., "IETF Rights in Contributions", [5] Bradner, S., Ed., "IETF Rights in Contributions", BCP 78, RFC
draft-ietf-ipr-submission-rights-05 (work in progress), June 3667, February 2004.
2003.
[6] Bradner, S., "Intellectual Property Rights in IETF Technology", [6] Bradner, S., Ed., "Intellectual Property Rights in IETF
draft-ietf-ipr-technology-rights-08 (work in progress), June Technology", BCP 79, RFC 3668, February 2004.
2003.
Informative References 8.2. Informative References
[7] Wu, T., "The SRP Authentication and Key Exchange System", RFC [7] Wu, T., "The SRP Authentication and Key Exchange System", RFC
2945, September 2000. 2945, September 2000.
Author's Address 9. Author's Address
Scott Brim Scott Brim
Cisco Systems, Inc. Cisco Systems, Inc.
146 Honness Lane 146 Honness Lane
Ithaca, NY 14850 Ithaca, NY 14850
USA USA
EMail: sbrim@cisco.com EMail: sbrim@cisco.com
Intellectual Property Statement 10. Full Copyright Statement
The IETF takes no position regarding the validity or scope of any
intellectual property or other rights that might be claimed to
pertain to the implementation or use of the technology described in
this document or the extent to which any license under such rights
might or might not be available; neither does it represent that it
has made any effort to identify any such rights. Information on the
IETF's procedures with respect to rights in standards-track and
standards-related documentation can be found in BCP-11. Copies of
claims of rights made available for publication and any assurances of
licenses to be made available, or the result of an attempt made to
obtain a general license or permission for the use of such
proprietary rights by implementors or users of this specification can
be obtained from the IETF Secretariat.
The IETF invites any interested party to bring to its attention any Copyright (C) The Internet Society (2004). This document is subject
copyrights, patents or patent applications, or other proprietary to the rights, licenses and restrictions contained in BCP 78 and
rights which may cover technology that may be required to practice except as set forth therein, the authors retain all their rights.
this standard. Please address the information to the IETF Executive
Director.
Full Copyright Statement This document and the information contained herein are provided on an
"AS IS" basis and THE CONTRIBUTOR, THE ORGANIZATION HE/SHE
REPRESENTS OR IS SPONSORED BY (IF ANY), THE INTERNET SOCIETY AND THE
INTERNET ENGINEERING TASK FORCE DISCLAIM ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY THAT THE USE OF
THE INFORMATION HEREIN WILL NOT INFRINGE ANY RIGHTS OR ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Copyright (C) The Internet Society (2003). All Rights Reserved. Intellectual Property
This document and translations of it may be copied and furnished to The IETF takes no position regarding the validity or scope of any
others, and derivative works that comment on or otherwise explain it Intellectual Property Rights or other rights that might be claimed
or assist in its implementation may be prepared, copied, published to pertain to the implementation or use of the technology
and distributed, in whole or in part, without restriction of any described in this document or the extent to which any license
kind, provided that the above copyright notice and this paragraph are under such rights might or might not be available; nor does it
included on all such copies and derivative works. However, this represent that it has made any independent effort to identify any
document itself may not be modified in any way, such as by removing such rights. Information on the procedures with respect to
the copyright notice or references to the Internet Society or other rights in RFC documents can be found in BCP 78 and BCP 79.
Internet organizations, except as needed for the purpose of
developing Internet standards in which case the procedures for
copyrights defined in the Internet Standards process must be
followed, or as required to translate it into languages other than
English.
The limited permissions granted above are perpetual and will not be Copies of IPR disclosures made to the IETF Secretariat and any
revoked by the Internet Society or its successors or assignees. assurances of licenses to be made available, or the result of an
attempt made to obtain a general license or permission for the use
of such proprietary rights by implementers or users of this
specification can be obtained from the IETF on-line IPR repository
at http://www.ietf.org/ipr.
This document and the information contained herein is provided on an The IETF invites any interested party to bring to its attention
"AS IS" basis and THE INTERNET SOCIETY AND THE INTERNET ENGINEERING any copyrights, patents or patent applications, or other
TASK FORCE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING proprietary rights that may cover technology that may be required
BUT NOT LIMITED TO ANY WARRANTY THAT THE USE OF THE INFORMATION to implement this standard. Please address the information to the
HEREIN WILL NOT INFRINGE ANY RIGHTS OR ANY IMPLIED WARRANTIES OF IETF at ietf-ipr@ietf.org.
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Acknowledgment Acknowledgement
Funding for the RFC Editor function is currently provided by the Funding for the RFC Editor function is currently provided by the
Internet Society. Internet Society.
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