RE: Proposal to create IETF IPR Advisory Board

I am somewhat concerned about the legal liabilities of such a board.

There are many types of patent encumberance, as with many other issues in a consensus organization, the stupider the claim, the more difficulty it causes.

Lets look at some examples:

Case 1: DH/RSA

Patent here was completely solid, the idea was genuinely novel, nobody was ever in real doubt as to the ability of RSA to win an infringement claim. And the patent did something that was simply not possible any other way.

So the result here was pretty clear-cut, no need for discussion. If you wanted to do RSA you had to got get a license. So the choice was deal or wait till the patent to expire in 2000.

Case 2: Certificate Distribution Points

Patent here was possibly enforceable, arguments over keeping CDPs in or out delayed the spec.

The result here was decided when a work-around was discovered that rendered the patent claims unnecessary. Once it was clear that the outcome would be royalty free regardless the patent lost all value and royalty-free terms were offered.

Case 8: The fruitcake Patent

Patent here is almost certainly total crud. It is difficult to see how anyone could imagine it had any relationship to the specification whatsoever. 

The result here, litigation costing the defendants $5 million each. Patent thrown out.

Case 9: The fruitcake Patent application

Here there is no patent, merely an application. But the applicant wants to extract $$$ and so will issue an IPR declaration which would be funny if not for the outcome of case 8.

Likely result, WG runs away from possibly encumbered technology.

Until we have a reform of the patent system there is nothing useful that such a board could do. The only useful response to an IPR claim is to find a work around. And that is not something very many people can do.

-----Original Message-----
From: ietf-bounces@ietf.org on behalf of Steven M. Bellovin
Sent: Wed 2/18/2009 2:44 PM
To: lrosen@rosenlaw.com
Cc: ietf@ietf.org
Subject: Re: Proposal to create IETF IPR Advisory Board

On Tue, 17 Feb 2009 19:24:20 -0800
"Lawrence Rosen" <lrosen@rosenlaw.com> wrote:

> Ted Ts'o wrote:
> > So you've done the equivalent of submit Windows source code and
> > assume that it can be ported to a Unix system "left as an exercise
> > to the reader"....  care to give a detailed suggestion about *how*
> > it could be revised to work with the IETF's more open procedures,
> > and still be useful in terms of meeting your stated goals? 
> 
> I've made no such assumptions. I've submitted a couple of process
> documents from W3C that can be modified easily to fit the IETF model.
> I thought John and Steven would be satisfied with a rough draft. Sort
> of like Windows might provide a model for a Linux open source
> program, without the actual code being yet written. :-)
> 
> Now that I've submitted this draft, I refuse to be told it isn't a
> draft, although I admit it isn't in the proper format. Any process
> bigots want to comment on that flaw tonight too?
> 
> I specifically said that the W3C Patent and Standards Working Group
> (PSIG) charter (http://www.w3.org/2004/pp/psig/) and *section 7* of
> the W3C Patent Policy
> (http://www.w3.org/Consortium/Patent-Policy-20040205/) would be
> models for an IETF IPR Advisory Board. Neither of those specific
> document sections implies anything mandatory about RAND or
> royalty-free or any other of the political patent battles that divide
> us. They are merely open process descriptions, just like a draft here
> ought to be. 
> 

I think it's a fair start, though I note that 7.5.3 carries with it a
fairly strong bias towards royalty-free terms.  But let me translate.

Rather than a standing board (which was what I thought you had
intended), you're suggesting (translated IETF terms) that when a WG
encounters a patent thought to be related, a group will be formed
consisting of the AD, the WG chair(s) ex officio, representatives of
the WG (presumably designated by the chair(s)), perhaps an IAB liason
-- and the IETF patent counsel.  What is the analog to "representatives
of each member organization"?  Volunteers not from the WG?  Selected by
whom?  The usual IETF practice would be appointment by the AD and/or
the IAB, I suspect.

What would the possible alternatives be?  The W3C version has a strong
bias towards royalty-free, since that's W3C's overarching policy.  The
IETF's policy is different, and the board's charge would have to be
different.  Really, with the exception that it needs legal input, such
a group would actually be a design team that is supposed to look at the
tradeoffs (per our policies) and make a recommendation to the WG.

Anyway -- I think this is a promising suggestion, and not inconsistent
with IETF practice or policy.  But a fully-fleshed out I-D -- one that
addresses the membership and the alternatives -- is probably needed, if
only as a matter of form.

		--Steve Bellovin, http://www.cs.columbia.edu/~smb
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