Subject: Re: IPR at IETF 54

From: "Joel M. Halpern" <[email-masked]>
Date: Sat, 01 Jun 2002 09:42:30 -0400

In general, this IPR debate seems to be missing several relevant parts of 
the discussion.
The discussion seems to be focussed on the case where a company brings 
forward a proposal, and simultaneously has or applies for a patent.  That 
is one interesting case.  It does cause problems.  It is hard to 
control.  But the other cases are much harder:

At the time when VRRP was chartered we knew that Cisco claimed relevant 
patents, and that while they were (to my perspective) trying to be 
cooperative they would not guarantee that whetever the working group did 
they would provide free licensing on their existing technology.
Should we have refused to charter the working group?

In anumber of working groups, as the work was going along, vendors have 
come forward with claims that they have patents that are (or may be) 
relevant to the work.  We once (probably more than once) tried to actually 
have IETF counsel determine whether these patents were likely to be 
relevant.  The result of this experience was the conclusion that the IETF 
should NEVER get into that game.
As such, we are in no position to evaluate patent claims.  We simply 
publish them.
Whould we then prevent standardization if anyone claims a patnet that is / 
may be relevant to practicing the standard under consideration unless they 
promise to license freely?
That is a recipe for disaster!
For those who do not se why...
Anyone who did not like a standard could undertake a bit of work, file for 
a related patent, and then claim that they thought it was necessary to 
practice the standard.  Since we can not be in the business of validating 
such claims, any such policy would inherently provide lots of companies, 
particularly large companies, with a way to block things they don't like.

Then there are the folks who are not participating in a particular activity 
at the IETF, but then conclude (after we standardize) that they have a 
relevant patent.  Should we declare the standard historic?
And then there are the folks who do not even participate in the IETF...

Yours,
Joel M. Halpern

At 07:54 AM 5/31/2002 -0600, Vernon Schryver wrote:
> > From: [email-masked]
>
> > > In still other words, don't you remember the years of pain
> > > Motorola/Codec caused PPP with those two bogus patents?
> >
> > I guess what I was asking was how the IETF would feel about an organization
> > grabbing a patent on an algorithm and using it the same way the GNU crew
> > uses copyright on source code.  (Remember - the GNU copyright only works
> > for *code* - since algorithms can be (at least in the US) patented but not
> > copyrighted, you'd have to do a similar stunt with a patent).
> >
> > (And yes, this would be a case of "the Good Guys file a bull-manure patent
> > to pre-empt the Evil Guys from filing a bull-manure patent" - but until the
> > Patent Office gets their act together we're stuck with borked software 
> patents
> > that are invalid due to prior art, etc....)
>
>In theory that could happen.  It may have happened in practice with
>the Ethernet patent.  But what's the point?  What is gained by
>winning such a patent from government(s) compared to publishing
>the same document, other than a year or three of jumping through
>hoops and plenty of money and hassles?
>
>If you look at patents, you soon see that there's nothing special about
>software patents and that the problems with the system are more than
>100 years old.  What would you expect from giving lawyers and government
>bureaucrats (specifically including examiners) the responsibility and
>authority to determine the validity (e.g. no perpetual motion) and
>novelty of other people's ideas?  Government central planning of
>economies is more or less dead (for now), but government central planning
>for science and technology lives in the West.
>
>
>Vernon Schryver    [email-masked]

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Sun, 02 Jun 2002 12:23:29 +0200

--On 31. mai 2002 07:54 -0600 Vernon Schryver <[email-masked]> 
wrote:

>>
>> I guess what I was asking was how the IETF would feel about an
>> organization grabbing a patent on an algorithm and using it the same way
>> the GNU crew uses copyright on source code.  (Remember - the GNU
>> copyright only works for *code* - since algorithms can be (at least in
>> the US) patented but not copyrighted, you'd have to do a similar stunt
>> with a patent).
>>
>> (And yes, this would be a case of "the Good Guys file a bull-manure
>> patent to pre-empt the Evil Guys from filing a bull-manure patent" - but
>> until the Patent Office gets their act together we're stuck with borked
>> software patents that are invalid due to prior art, etc....)
>

the only advantage I could see is that the only prior-arts database the 
patent offices are REQUIRED to search is the database of old patents.

---

From: Vernon Schryver <[email-masked]>
Date: Sun, 2 Jun 2002 08:42:42 -0600 (MDT)

> From: Harald Tveit Alvestrand <[email-masked]>

> ...
> > the Ethernet patent.  But what's the point? ...

> patent offices are REQUIRED to search is the database of old patents.

The trouble with that common suggestion is that it assumes the word
"search" makes sense in this context.  It does not and cannot.  Anyone
who has read at least two patents realizes that they are certainly not
intended to be written to do clearly describe an idea.  Because of the
way they are written, it is too much hope that people of reasonable
intelligence and at least ordinary education and skill in the relevant
arts can honestly "search" patents.  If that notion made sense, new
patents would be as popular reading as the "Scientific American." There
would be trade publications that consisting largely of patents.  You
would consult US4558302 instead of the BSD code to figure out LZW.

Second, what do the followin words from
http://www.delphion.com/details?&pn=US06025810__ say about the
intelligence and ordinary education of the responsible examiner:

    A method to transmit and receive electromagnetic waves which
    comprises generating opposing magnetic fields having a plane of
    maximum force running perpendicular to a longitudinal axis of the
    magnetic field; generating a heat source along an axis parallel to
    the longitudinal axis of the magnetic field; generating an accelerator
    parallel to and in close proximity to the heat source, thereby
    creating an input and output port; and generating a communications
    signal into the input and output port, thereby sending the signal
    at a speed faster than light.

Yes, I know the group velocity can exceed the speed of light.  Do
you think that is relevant?  You used to be able to see that whole
patent for free.  As far as I could tell then, it and the companion
patents made less sense than Eugene Terrell's IDs.

Third, if you pay the least attention to business news, you frequently
hear of court cases in wich one patent is found to be invalid because
of other patents.  If "patent searching" is makes sense, how did the
Welch LZW patent get granted after the IBM patent?

---

From: Dave Crocker <[email-masked]>
Date: Mon, 03 Jun 2002 18:32:42 -0500

At 02:09 PM 5/31/2002 -0400, Theodore Ts'o wrote:
So we seem to have only a few work items suggested so far:

>I think the problem is that while there is (very) rough consensus
>IETF-wide that there is a strong cultural bias against patent
>encumberances (*), this bias is not adequately documented in writing.

1.      Improve the language that indicates IETF community preferences 
concerning when to accept or reject IPR components to a specification.  Per 
Ted's observation, the improved language needs to give better guidance to 
new IETF participants and to other groups that work with the IETF. (The 
rest of Ted's note suggested some nicely pragmatic goals/caveats for upper 
and lower bounds to this goal.)

>Ten years ago, we were mostly concerned with the "silent patent holder" 
>problem. ...
>The current process was designed to minimize this risk, ...
>  As KRE points out, the whole mechanism falls apart when vendors field 
> products based on a proposed standard, not to mention an internet draft.

It seems unlikely that we can do much about this, for specifications that 
have IPR announced after proposed standard has been reached.

2.      When we know about IPR before going to Proposed, we could of course 
require the "interoperability test" for IPR licensing beforehand.

The idea of requiring interoperability testing before going to Proposed is 
already in the IETF repertoire for certain sensitive cases, so this would 
be a pretty compatible change to the current model.

>  There are other issues. The first one is the imprecision of the 
> disclosure requirements.

3.      Seems like this is a relatively minor tuning issue to the current 
policy, followed by some careful legal language crafting.  Yes?

>A second issue is the interaction between the standardization process and 
>non-disclosure agreements. For example, an IETF participant may know that 
>his or her former employer has a patent claim on a technology considered 
>for standardization; in fact, I know case where the participant is in fact 
>one of the authors of the patent. Yet, the agreement signed when leaving 
>an employer typically prevents disclosure of such information. In another 
>example, a vendor may have to sign an NDA before learning that its product 
>infringes on some other organization's patent. This vendor is then legally 
>prevented to signal the existence of the patent claim to the IETF.

4.  This is probably going to be the toughest of the set to 
resolve.  Perhaps we can treat some sorts of NDA-related issues as conflict 
of interest, and invoke our current rules concerning them?  Ultimately I 
suspect we have little leverage here.

>I would contend that, if we have one urgent problem to solve, it is to 
>find a way to ensure speedy disclosure of intellectual property issues 
>that affect a standard.

I have never heard anyone claim that we have more leverage over this than 
we are already exerting.

d/

----------
Dave Crocker <mailto:[email-masked]>
TribalWise, Inc. <http://www.tribalwise.com>
tel +1.408.246.8253; fax +1.408.850.1850

----------
Dave Crocker <mailto:[email-masked]>
TribalWise, Inc. <http://www.tribalwise.com>
tel +1.408.246.8253; fax +1.408.850.1850