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

John C Klensin <john-ietf@jck.com> Mon, 04 April 2016 18:44 UTC

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Date: Mon, 04 Apr 2016 14:44:26 -0400
From: John C Klensin <john-ietf@jck.com>
To: Michael Cameron <michael.cameron@ericsson.com>, Barry Leiba <barryleiba@computer.org>, Stephan Wenger <stewe@stewe.org>
Subject: RE: Last Call on draft-bradner-rfc3979bis-08.txt ("Intellectual Property Rights in IETF Technology")
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--On Monday, April 04, 2016 16:46 +0000 Michael Cameron
<michael.cameron@ericsson.com> wrote:

> "A best, good faith effort" would place on Participants the
> highest legal standard of care--possibly requiring an AD or WG
> chair to affirmatively search their IP portfolio and map the
>...

Which is exactly why I did not suggest that or any other wording
that has specific legal implications.

> As far as non-IETF sanctions, you are probably thinking of the
> Rambus-JEDEC matter.

No, actually, I wasn't.   For some years, I sat on ANSI's
Information Systems Standards Board which, at the time, oversaw
ANSI SDOs in the general IT area (including IEEE and what was
then X3) and the US TAG to ISO TC 97 and then ISO/IEC JTC1.  In
that role, I got a major earful about these issues (in both US
and "international" flavors) from professionals and attorneys
with specific specialties in the area.

> I am not aware of any situation where an
> IETF Participant has consciously hidden patents while pushing
> an IETF standard, and then, once the standard has been
> adopted, asserted the patents.

Nor am I.  But I'm not sure what "hasn't happened so far"
implies.  The consensus in the community has been that we
shouldn't wait for something bad to happen before we put good
policies in place.   I don't think "hasn't happened" it is an
argument for hair-splitting rules which is all I'm arguing
against.

>  So long as a Participant is an
> active participant, that is, someone actively pushing the
> Contribution in some fashion, and not someone who "should have
> known", and is then consciously aware of possible IPR, only
> then does the duty to disclose arise. 

But that is not the current, consensus, judgment and 3979 rule
although that category of people is the most clear.  In
particular, if someone is going to make decisions about, e.g.,
whether consensus exists about a particular issue or document,
and they are aware of relevant IPR (or, by the way, anything
that might constitute a broadly-construed conflict of interest),
I want to be absolutely sure they are obligated to disclose,
even if they have not publicly said a word consistent with
"actively pushing the contribution".

For the case of ADs, being very clear about that might result in
more situations in which someone who hasn't read a document
"voting" "I haven't read this and therefore abstain" rather than
voting "no objection" on the grounds that, having not read the
document and not seen anything bad in reviews, they don't see a
reason to object.   IMO, that might actually be a desirable side
effect.

To be explicit given Ben's note, I'd consider it entirely
reasonable for an AD who suspects a particular document or WG
work area might, if reviewed and understood, require an IPR
disclosure that other commitments (like day job obligations)
would not permit to isolate herself from the specification, and
discussions of and decisions about it and then not disclose.
That is not "recuse" in the sense sometimes used of
participating in discussions but not voting.  It is complete
isolation.  I'd hope it would also be explicit, perhaps in the
form of a statement like "I don't know or cannot discuss if my
organization has IPR that would interact with that WG or not
but, if were to have such IPR, I couldn't disclose it and
therefore do no want to participate in or contribute to any
aspect of that work or evaluation of it".  If a given AD avoided
work by making statements like that too often, I'd expect
Nomcoms to take notice in evaluating performance (or possibly
calls for resignation), but that is really a different matter.

Again, I think it is lots more important that we be clear about
intent -- and allow ADs ways to avoid being crushed between IETF
and employer rules by stepping back-- than it is that we try to
make specific rules covering every case.

    john