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

[Stephan Wenger <[e-mail]>]

Hi Barry,



On 4/4/16, 10:43, "ietf on behalf of Barry Leiba" <[e-mail] on behalf of [e-mail]> wrote:

>>> So, one might argue that an AD can be unaware that a particular
>>> document includes something that needs to be disclosed up to the
>>> point that they take some action on that document, such as sponsoring it.
>>
>> Yes, but is that an issue? The AD is only required to disclose when
>> she is "reasonably and personally aware" of the need for a disclosure,
>> which will presumably become the case when she actually reads the draft
>> (or sees the slides that describe the technology in question).
>
>Be careful here: I think it is an issue.
>
>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.  

>If I'm participating in active discussion about
>Section 4 of document X, and I should be reasonably and personally
>aware of IPR my employer holds with respect to Section 3 of document
>X, we aren't going to happily accept that I didn't read Section 3 so I
>don't have a responsibility to disclose.
>
>If we're saying that, say, ADs are considered to be Participants with
>respect to every document and discussion in every working group in the
>area -- and I see why some people think that's wise and appropriate --
>then we're saying that I have a responsibility to disclose whether or
>not I've read the documents, and waiting until AD Evaluation state
>would be a late disclosure.  Consider that the working group might
>have been proceeding for a couple of years and many I-D revisions
>under the assumption that the technology is unencumbered... and then I
>dump an IPR statement on them just as they've finished.

A late disclosure is better than no disclosure, and, 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.

Stephan

>
>This really is a tough one: it would be nice if the late disclosure
>didn't happen, but ADs can't reasonably be expected to read every
>draft in every working group early on... and, as others have said, it
>would be very bad if this disclosure requirement gave us even fewer AD
>candidates than we have now.
>
>Barry
>