Subject: IPR and I-D boilerplate

From: John C Klensin <[email-masked]>
Date: Thu, 27 Jun 2002 08:30:21 -0400

Hi.

I've recently had another close encounter with the patent system
and notions of prior art.  It occurs to me that we could make a
slight modification to the Internet Draft structure and encourage
including an additional bit of information that would be quite
helpful in some cases:

Lets say we have draft-ietf-foo-bar-09.txt.  It bears a date, but
usually gives no clue about when the basic ideas were first
exposed to the Internet community.  For determining when an idea
became part of the common knowledge and practice of experts in
the field, that information is all-important.  So I think we
should encourage Internet-Draft editors and authors to list a
revision history when they consider it important.   

This could be as simple as a note similar to that used by many
journals, i.e., a line that says "first version posted
2000.04.01" or "first submitted 1999.12.25".   Or the author
could choose to list each version number, the date, and perhaps a
brief summary of major ideas introduced.

And, where it seems appropriate to the authors or the community,
it seems to me that we might reasonably ask the RFC Editor to
carry these data forward into the archival form of the document
(if an RFC is actually produced).

Note that I am _not_ recommending a rule or requirement.   Only
that we examine the advantages of having history and tracking
information available in cases where I-Ds are documenting
protocol ideas that could be subject to IPR claims and that, when
having it seems useful to someone, that we encourage documenting
and keeping it in very public ways.

      john

---

From: Lloyd Wood <[email-masked]>
Date: Thu, 27 Jun 2002 14:24:17 +0100 (BST)

Given that a large number of drafts, including even
draft-bradner-submission-rights-00.txt
currently end in a boilerplate saying copyright "(year)"
or an out-of-date year because the boilerplate has been cut and pasted
from a previous draft, it would be impossible to rely on the
information that you propose. Draft authors aren't generally awfully
hot on proofing such details.

The IETF has mailing list records, where draft submissions are
announced and ideas are recorded. Isn't that sufficient?

L.

and if you're going to use ISO 8601 date format, specify it's that.

On Thu, 27 Jun 2002, John C Klensin wrote:

> Date: Thu, 27 Jun 2002 08:30:21 -0400
> From: John C Klensin <[email-masked]>
> To: [email-masked]
> Cc: [email-masked]
> Subject: IPR and I-D boilerplate
>
> Hi.
>

<http://www.ee.surrey.ac.uk/Personal/L.Wood/><[email-masked]>

---

From: [email-masked]
Date: Thu, 27 Jun 2002 11:12:46 -0400

> brief summary of major ideas introduced.

You'd have to do this, in case the "prior art" was something introduced
between -03 and -04 due to working group discussion....
-- 
				Valdis Kletnieks
				Computer Systems Senior Engineer
				Virginia Tech

---

From: John C Klensin <[email-masked]>
Date: Thu, 27 Jun 2002 13:43:23 -0400

--On Thursday, 27 June, 2002 11:12 -0400 [email-masked]
wrote:

>> could choose to list each version number, the date, and
>> perhaps a brief summary of major ideas introduced.
> 
> You'd have to do this, in case the "prior art" was something
> introduced between -03 and -04 due to working group
> discussion....

Again, I am less interested in a firm rule (or discussions or
such rules) in this case as much as I am about giving someone a
strong indication that there might have been something published
of interest, something that they had best track down before
swearing that they have good reason to believe that no prior art
exists.   Whether, at that point, they try to obtain the old I-D
(and I don't think this provides any justification for
re-visiting our policies on availability of those documents), or
contact the author, or believe that everything in the last
version was in the first one or was obvious from it, or pretend
ignorance, is really a separate matter.

   john

---

From: John C Klensin <[email-masked]>
Date: Thu, 27 Jun 2002 14:15:03 -0400

--On Thursday, 27 June, 2002 14:24 +0100 Lloyd Wood
<[email-masked]> wrote:

> or an out-of-date year because the boilerplate has been cut
> and pasted from a previous draft, it would be impossible to
> rely on the information that you propose. Draft authors aren't
> generally awfully hot on proofing such details.

ok, so?  (see below)

> announced and ideas are recorded. Isn't that sufficient?

I don't think so.  If one is looking for a reliable source of
information, there is typically less of it in a title, and may
be less in an abstract, than the material you point to.  Nor are
those records indexed in any useful way.  But neither, I think,
is the point. 

I'm not a lawyer, I don't play one on television, and I really
hoped to be able to make this suggestion without starting the
"amateur lawyer" loop again.  I haven't said a word about what
can be trusted -- from either a legal or a technical/ "security"
standpoint -- and really don't intend to.  

I made the suggestion because I thought it might be helpful to
offer authors of something that someone else might consider an
invention or  component of one an opportunity to record and
maintain a backtrace.  No requirement.  If a given author can't
be bothered, or can't be bothered to do it accurately, no
problem.

If I'm a potential patent applicant, and I've been working on
something, and I'm acting in good faith (that does happen), and
I run across an I-D that seems to overlap what I'm doing, I'd be
happy to have a hint that it has a publication history.  Whether
that publication history is relevant or authoritative is
something I'll just have to figure out, regardless of what is in
the backchain.  And, as I just told someone in response to a
private note, I'd think, personally, that I'd be much more
likely to skim whatever is in front of me and then try to
initiate a discussion with the author.  I would not try to
derive meaning from the specific dates beyond the observation
that the author considered them relevant.

Now, whether this would be of any use at all in cases where good
faith is questionable, I'll leave to the [real] lawyers.  I'd
think it would be a bit harder to claim first invention or first
publication, with no reference to prior work, if there is an RFC
or active I-D out there that points to an earlier publication
that predates my claim of when I thought of the idea.  I'd also
think it would be harder to make that claim with documents (like
RFCs and many I-Ds) that are picked up by indexing systems than
it would be on the basis of a mailing list announcement of an
I-D, when the mailing list announces hundreds or thousands of
I-Ds a year.   But that is just common sense, not legal advice
or estimates of what lawyers might tell you.

> and if you're going to use ISO 8601 date format, specify it's

I tend to use that date format when I'm expressing all of
month-day-year and when I don't want to explicitly label it as a
date.  Personal habit... Because I think this should be
voluntary and informal, I think specifying the format of dates
or other details would be a waste of time.  I would strongly
oppose any such rules for I-Ds.  It is conceivable that the RFC
Editor might have rules that they would like to apply for dates
in RFCs, but that is an entirely different issues.

    john

---

From: Joe Touch <[email-masked]>
Date: Sat, 29 Jun 2002 18:32:54 -0700

> including an additional bit of information that would be quite
...
> So I think we
..
> (if an RFC is actually produced).

John,

Those dates wouldn't be useful per se. Just because an RFC asserts "the 
ideas herein originated at the following earlier date", that probably 
isn't enough to establish the earlier date for patent purposes (pro or con).

A revision history might be useful for other reasons, esp. as the ID 
progresses. But the ID is really the draft of an RFC (or a throw-away if 
there isn't an RFC). Information on the preliminary versions of a 
document, who added what when, etc. may be interesting at the time, but 
the contents of an RFC should strive to transcend that level of content.

Joe

---

From: Joe Touch <[email-masked]>
Date: Sat, 29 Jun 2002 18:35:35 -0700

> announced and ideas are recorded. Isn't that sufficient?

FWIW, the contents of the draft aren't typically mailed; only the 
abstract and title.

Drafts are that - drafts, and are intended to disappear. If there is 
information in them that needs archiving, it either gets issued as an 
RFC (which is archived at the date of issue of the RFC), or can easily 
be documented by other mechansims, e.g., in published papers, personal 
laboratory notebooks, or technical reports. IDs are not tech reports.

Joe

---

From: John C Klensin <[email-masked]>
Date: Sun, 30 Jun 2002 12:22:48 -0400

Joe,

--On Saturday, June 29, 2002 6:32 PM -0700 Joe Touch
<[email-masked]> wrote:

>> I've recently had another close encounter with the patent
>> system and notions of prior art.  It occurs to me that we
>> could make a slight modification to the Internet Draft
>> structure and encourage including an additional bit of
>> information that would be quite helpful in some cases:
> ...
>> So I think we
>> And, where it seems appropriate to the authors or the
>> community, it seems to me that we might reasonably ask the
>> RFC Editor to carry these data forward into the archival form
>> of the document (if an RFC is actually produced).
> 
> John,
> 
> Those dates wouldn't be useful per se. Just because an RFC
> asserts "the ideas herein originated at the following earlier
> date", that probably isn't enough to establish the earlier
> date for patent purposes (pro or con).

Of course not.
 
> A revision history might be useful for other reasons, esp. as
> the ID progresses. But the ID is really the draft of an RFC
> (or a throw-away if there isn't an RFC). Information on the
> preliminary versions of a document, who added what when, etc.
> may be interesting at the time, but the contents of an RFC
> should strive to transcend that level of content.

I agree.

Please, folks, I am _not_ trying to restart the discussion of
"archival" I-Ds.  Personally, I remain opposed to the idea, and
I believe that they should be treated as drafts and discarded.
If they result in an RFC, then the RFC should stand on its own.
Nor do I think that there is any quick fix to the patent
situation, least of all anything like this.

However, if someone is searching for prior art in good faith, a
backward pointer that indicates that something _might_ exist,
that there is a path worth investigating, seems worthwhile.
Similarly, if one is trying to invalidate a patent or push back
on an application, hints about where to look for things that the
patent-applicant should have known about at the time might be
helpful.

It is clearly cheap to provide the back pointers, at least
unless we try to turn it into something that "proves" anything
or "establishes dates for patent purposes".  The key is what one
does given the back pointer.  Me, I'd try get in touch with the
author, offer to pay a consulting fee if needed and appropriate,
and see whether there is an applicable history and how to
document it.  Could that lead to a request to the Secretariat or
some other archive for an expired I-D?  Sure, but the
Secretariat handles those requests now.

I am _just_ proposing a back pointer that tells interested
partie that there might be something worth looking for.  No
more.  Anything else takes us into ratholes with, IMO, little
benefit for the reasons you and others have pointed out.

    john

---

From: Peter Deutsch <[email-masked]>
Date: Sun, 30 Jun 2002 11:08:33 -0700

g'day,

John C Klensin wrote:
. . . 
> situation, least of all anything like this.

Well, without repeating the entire thread yet again there were pretty
categoric statements made during the last iteration of this thread that
a Drafts archive *was* going up "soon". Has this idea been shelved,
canceled, delayed or absorbed by the event horizon surrounding the
infinitely dense Black Hole that is the intellectual property mess? ;-)

And if we're going to state our own opinions in an aside, I personally
believe that such an archive would be invaluable. "He who fogets history
is doomed to repeat it" and all that....

			- peterd

-- 

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    Peter Deutsch                       [email-masked]
    Gydig Software

   That's it for now. Remember to read chapter 11 on the
   implications of quantum mechanic theory for time travel
   and be prepared to have been here last week to discuss.

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