Re: [antitrust-policy] https://datatracker.ietf.org/doc/draft-halpern-gendispatch-antitrust/

[Rigo Wenning <[e-mail]>]

Hi all,

On 25.02.23 02:33, Brad Biddle wrote:
> I'm writing to address the concerns raised by Christian [1][2], Mark [3] 
> and Pete [4] about Section 4.2 of the draft, which recommends that 
> participants "Use Caution ... [when] [s]eeking clarifications about IPR 
> disclosures, in a context when any such clarifications could be 
> reasonably perceived as entering into group negotiations of IPR terms." 
> Christian said this "looks like an admonishment for WG to not do" things 
> like "modif[ing] standards to avoid [patent] claims, or structur[ing] 
> standards in ways that allow for negotiation of either the encumbered 
> option or a free alternative." Mark suggests that this part of 4.2 is 
> too broad and could be narrowed to focus on the scenario when "such a 
> discussion results in something that's open to all but advantages some 
> party through the structure of the agreement." Pete conveyed general 
> support for these concerns, and noted generally that "speaking in terms 
> of specific examples instead of trying to be broad would clarify things 
> greatly."

 From the W3C experience, I can contribute that given the vast amount of 
patents of dubious quality, given the price for patent searches, given 
the psychological effect on groups, the decision to discourage groups 
from "searching for" or "looking around" for patents was a good 
decision. The benefit is now confirmed by years of evidence. Note that 
W3C also has disclosure for WG participants.

But, W3C has a mechanism to deal with encumbered specifications. So IF 
something appears later, this can be dealt with. And this time-issue 
seems to bite here. Because my experience always was that a patent 
ambush was created by the patent holder trying to be as late as 
possible, often by injecting something from the outside not being part 
of the group. Which means the nasty problems will normally only appear 
in very late stages or once the process has ended. Disclosure helps a 
great deal and is enough. No "search" needed IMHO.

But if you touch the entire policy, you may take the time-issue into 
account by adding a mechanism that allows to the Working Group to change 
some aspects of the Specification to avoid certain of those patents of 
dubious quality. Because even though they are of dubious quality, those 
patents are burdensome and expensive to fight. This could ease strong 
feelings about the need for a super strict execution of the disclosure.

With Patent Advisory Groups, W3C has such a "group negotiation". Apart 
from being a pain, they were not questioned by the competition 
authorities, because they aimed at having a free specification.

Just my 2 cents from the balcony in the hope it helps your discussion.

  --
  Rigo Wenning
  ERCIM/W3C Legal counsel