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

Jari Arkko <jari.arkko@piuha.net> Mon, 25 April 2016 20:15 UTC

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Subject: Re: Last Call on draft-bradner-rfc3979bis-08.txt ("Intellectual Property Rights in IETF Technology")
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From: Jari Arkko <jari.arkko@piuha.net>
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Date: Mon, 25 Apr 2016 23:15:25 +0300
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To: Pete Resnick <presnick@qti.qualcomm.com>
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Thanks Pete.

I’m working slowly through your comments, but wanted to agree on at least these from my personal perspective:

> A few editorial ones suggested by some lawyer friends. They all seem eminently sensible to me:
> 
> - Section 5.5(A): s/i.e./e.g.
> 
> - Section 5.5(B): s/royalty rates/royalties. I'm told that there are royalties that might not have "rates" associated with them.

yes

> - Section 5.5(C): Two things:
> 
> OLD
>      and will attach to the associated IPR
> NEW
>      and will attach, to the extent permissible by law, to the associated IPR
> END
> 
> I'm told that there are some jurisdictions where you may not be able to do that.

yep

> OLD
>      must ensure that such
>      commitments are binding on any subsequent transferee of the
>      relevant IPR.
> NEW
>      must ensure that such commitments are binding on a transferee of
>      the relevant IPR, and that such transferee will use reasonable
>      efforts to ensure that such commitments are binding on a
>      subsequent transferee of the relevant IPR, and so on.
> END
> 
> The object of the "subsequent" wasn't clear, so this just spells it out. Wordy, but more precise.

right

> - Section 7, paragraph 6:
> 
> The only change in this paragraph from 3979 was to add the word "all" in the second-to-last sentence. My lawyer friends tell me that this little change is opening a can of worms, having to do with licensing to makers of parts instead of implementers of the whole specification. I don't think we meant to change the meaning from the 3979 meaning, and I certainly don't think that we meant to change some implication about whether folks in general needed to license to people that make parts where they wouldn't have before. Was there something unclear about that sentence that needed the word "all" added to it? We aren't making a substantive change, are we? Can we just strike it? It seemed pretty clear to me before.

agree

> As far as the concern, the second part of the next sentence in 5.4.2(A) is worrisome:
> 
>                                                                    If a
>       patent has issued, then the new IPR disclosure must include the
>       patent number and, if the claims of the granted patent differ
>       from those of the application in manner material to the relevant
>       Contribution, the IPR disclosure must describe any differences in
>       applicability to the Contribution.
> 
> The first part is fine, though it repeats what's in 5.4.1 already, so I think it can be dropped. But the second part is what I'm concerned about. We've never before required disclosures to determine and discuss the applicability of the disclosure to the Contribution, and nowhere else in this document is that mentioned. Indeed, we go to great lengths to say that the leadership of the IETF doesn't try to figure out applicability, and that even WGs or the IESG can only take into account their opinions of what the applicability is. As a general rule, I don't think we can ask people who disclose to do the analysis to determine what parts of the patent do or do not apply to a particular contribution. As we say elsewhere, that's really up to a court. So I think the above should just be dropped.

I agree, although I wonder if the intent was to cover a case where — given the changes in claims — the issued patent no longer covers the draft. But, even so, there’s a practical concern: I’m not sure it is easy to get lawyers to state that they have no claims on a particular topic.

Jari