Re: Last Call on draft-bradner-rfc3979bis-08.txt ("Intellectual Property Rights in IETF Technology")

[joel jaeggli <[e-mail]>]

On 4/4/16 5:06 PM, Stephan Wenger wrote:
> Hi all,
> 
> Barry and I had a chat about this.  I also had offline conversations
> with Mike Cameron and a chat with Joel.  Barry and I at least agree on
> the problems.  The solutions are mine for now, and they absolutely are
> in need of wordsmithing...
> 
> Based on the discussion so far, there seem to be a need for the following:
> 
> 1. A clarification that an AD, by the nature of his/her office,
> regularly becomes aware of Contributions late in the process (for
> example at IETF Last Call) and, therefore, cannot be expected to
> disclose any IPR Covering those Contributions until such late time in
> the process.
> To fix this point, a simple explanatory sentence somewhere in section
> 5.2.2 would suffice.  For example “By the nature of their office, IETF
> area directors regularly become aware of Contributions late in the
> process (for example at IETF Last Call) and, therefore and in such
> cases, cannot be expected to disclose any IPR Covering those
> Contributions until such late time in the process.”
> 
> The purpose of this sentence is to protect an AD and its sponsoring
> company from allegations, both within the IETF and in courts, that they
> disclosed late against policy.
> 
> 2. A clarification or, more likely, a substantial change that, like any
> other individual in the IETF, also an AD has the option to recuse
> himself from involving himself/herself in the decision making process of
> a document, even a document in his own area. For example, an AD that did
> never comment on a document and abstained during the IETF Last Call
> would not incur a disclosure obligation, even if the Contribution were
> in his/her own area.  


I kind of have a problem with this point. it signals that you would have
to make a disclosure if you did participate. which is tantamount to
disclosing but with an extraordinarily incomplete statement.

> This second point is more tricky.  Is the formulation currently in the
> draft, which defines ADs as Participants, inline with what’s written in
> point 2?  I’m coming around to think that it does not.  Instead, I think
> we have a contradiction in the current draft—on one hand, an AD who
> intentionally stays away from influencing the decision process regarding
> a Contribution should not incur an obligation based on the underlying
> principle of the policy—no more than anyone else; but the text about ADs
> being Participants rules out that interpretation.  Having contradictions
> in patent policies is a Very Bad Idea since at least Rambus (ca. 2003).
>  Is that correct so far?
> 
> Based on the current formulation, and without violating the policy, an
> AD who is under the gun of his IPR department not to disclose a specific
> IPR has only the option to step down.  Is this what we want in each and
> every case?  Or would we rather be pragmatic and allow an AD to recuse
> himself/herself occasionally?  If yes, I think we need language
> indicating that such a mechanism is available, but also is meant to be
> used sparsely, and at least implying that ADs who are forced to use it
> more than under exceptional circumstances are indeed to step down.  
> 
> The paragraph below tries to express this.  The markup will probably
> only be visible if you choose to view the HTML version of this email.
> 
> “
> k. "Participating in an IETF discussion or activity": means making a
> Contribution, as described above, or in any other way acting in
> order to influence the outcome of a discussion relating to the
> IETF Standards Process. Without limiting the generality of the
> foregoing, acting as a working group chair or Area Director
> constitutes "Participating" in all activities of the relevant
> working groupor area. "Participant" and "IETF Participant" mean
> any individual Participating in an IETF discussion or activity.  _Under _
> _extraordinary circumstances only, an AD may choose not to Participate _
> _in the discussion or activity of his/her area, recuse himself/herself _
> _from IESG deliberations of related documents, and abstain during _
> _the IESG ballot process, thereby not incurring the obligations based_
> _on Participating._
> "  
> 
> Stephan
> 
> 
> On 4/4/16, 11:39, "[e-mail] <mailto:[e-mail]> on
> behalf of Barry Leiba" <[e-mail]
> <mailto:[e-mail]> on behalf of [e-mail]
> <mailto:[e-mail]>> wrote:
> 
>     A follow-up here:
> 
>     I'd be more comfortably with something more waffly, something more
>     like this:
> 
>     Without limiting the generality of the foregoing, acting as a working
>     group chair or Area Director can often be considered "Participating"
>     in all activities of the relevant working group or area; as such,
>     working group chairs and Area Directors are expected to make a best,
>     good-faith effort to carry out the responsibilities of Participants.
> 
>     Or perhaps we want to separate WGCs from ADs here, and the text needs
>     more work in any case, but I hope people see the general point.
> 
>     Barry
> 
>     On Mon, Apr 4, 2016 at 10:27 AM, Barry Leiba
>     <[e-mail] <mailto:[e-mail]>> wrote:
> 
>                 The "reasonably and personally aware" applies to the
>                 IPR, not to the
>                 participation.
> 
> 
>             I think this is incorrect.
> 
>             According to section 5.1.2 (disclosure requirement based on
>             Participation, not own IPR), a disclosure obligation exists
>             if “the
>             Participant believes Covers or may ultimately Cover that
>             Contribution”.  I don’t think anyone could argue that an AD
>             has a
>             “believe” in a patent or application he/she is aware of Covers a
>             Contribution when he has never seen the Contribution.
> 
> 
>         Would you accept "I didn't read the draft" as an acceptable reason
>         that someone engaged in active discussion on a draft didn't
>         disclose?
> 
>         We don't have different levels of Contributor here.  Someone
>         making a
>         Contribution has an obligation to disclose, even if s/he was one of
>         those who said, "I didn't read the draft, but...."  If we
>         declare the
>         ADs to be Contributors, why does the same not apply to them?
> 
>             A late disclosure is better than no disclosure
> 
> 
>         I hope we all agree on that!
> 
>             clearly, an AD
>             has a much better justification of making such a late
>             disclosure.  I
>             would hope that no one would complain if an AD makes a late
>             disclosure
>             and, when asked for the reason of lateness, he says “I was not
>             responsible AD; I came across this during final review in
>             IETF last
>             call, and just identified this. “  In fact, people should
>             appreciate
>             this.
> 
> 
>         Maybe so, but as it stands now in the document, it's still a late
>         disclosure, and there might still be backlash, legal concerns by
>         employers, and reluctance to put people in that position.
> 
>         If that's the consensus, then there we have it... but I think we
>         should be very careful about unintended consequences of this one.
> 
>         Barry
> 
>