Re: Proposed Update to Note Well

Barry Leiba <> Fri, 22 June 2012 00:04 UTC

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Date: Fri, 22 Jun 2012 02:04:25 +0200
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Subject: Re: Proposed Update to Note Well
From: Barry Leiba <>
To: Stephan Wenger <>
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Stephan, you're right about the first point.  We were focused on "knowing"
about the IPR, but it's "believe" is covered, indeed.  For the purpose of
this briefest of brief summaries -- the point here is to make something
that could actually be shown *and read out* by the chairs in IETF sessions
-- I think replacing "know" with "believe" is the best answer.

For the second point, "own", you're also right, but for this purpose I
think we have to say that it has to yield to simplicity.  The more detailed
reference will have to be the place to go for the proper legal info.  We
did think about this, and "own" was the closest we could get in "sound
bite" form.

Barry, Applications AD

On Thursday, June 21, 2012, Stephan Wenger wrote:

> Hi Russ, policy-folks,
> I support the simplification of the Note Well.
> Two concerns, one substantial and one nit, with respect to the language
> proposed.
> The use of the work "know" in the context of requiring a disclosure is IMO
> substantially wrong.  It should be "believe".  Two reasons.  The pragmatic
> one: Positive "knowledge" of a patent covering a technology is not
> something the IETF can expect from a layman.  The net result of this
> language could well be that legal departments advise participants to never
> make disclosures, as they are not patent lawyers (let alone courts of law)
> that can reasonably make a determination of infringement.  Second, the
> procedural reason:  Knowledge is not what BCP79 requires.  BCP79 requires
> (in section 6) knowledge of IPR of which the contributor "believes" that
> it covers, or may cover, the contribution.   According to my parsing of
> English (and note that I'm not a native speaker), in the sentence
> proposed, the "know" is attached to "covered" and not to the existence of
> a patent.
> The nit: "you or your employer own".  I believe that "own" is a close
> enough (and practical enough) approximation of "right to assert", which is
> required in BCP79.  However, there are scenarios where one does not "own"
> IPR (in the sense of an assignment), but has the right to assert.  One
> example would be an exclusive license.  In the light of recent legal
> maneuvering (i.e. HTC asserting patents that they have borrowed from
> Google--at least that is my understanding), language closer to BCP79's
> language may be preferable.  Then again, the motivation of this exercise
> appears to be to make the Note Well more accessible, and the language as
> provided is not in contradiction with BCP79; it just leaves out one exotic
> class of cases.  So I call this a nit.  Still, thinking about a
> replacement for "own" that is more layman-friendly than "right to assert"
> would be a worthwhile exercise.
> Regards,
> Stephan
> On 6.21.2012 15:10 , "IETF Chair" < <javascript:;>> wrote:
> >The IESG has heard many complaints that the Note Well is too complex.
> >After some discussion with counsel, we propose the following updated Note
> >Well for your comment and review.  The below summary would be followed
> >with a pointer to or text of more details, which will depend upon whether
> >it's a meeting slide, on the web site, on the registration page, or on a
> >mailing-list greeting.
> >
> >On behalf of the IESG,
> >  Russ Housley
> >  IETF Chair
> >
> >--------------------------------------
> >
> >
> >In summary:
> >
> >   By participating with the IETF, you agree to follow IETF processes.
> >
> >   If you write, say, or discuss anything in the IETF, formally or
> >informally,
> >   (all of which we call "a contribution") that you know is covered by a
> >patent
> >   or patent application you or your employer own, one of you must
> >disclose
> >   that.
> >
> >   You understand that meetings might be recorded and broadcast.
> >
> >This would be followed with a pointer to or text of more details,
> >which will depend upon whether it's a meeting slide, on the web site,
> >on the registration page, or on a mailing-list greeting.
> >
> >