RE: I-D Action: draft-bradner-rfc3979bis-08.txt

[Michael Cameron <[e-mail]>]

After reviewing draft-bradner-rfc3979bis-08.txt, I would propose the following in order to bring additional clarity and certainty to the obligations imposed on Area Directors and WG chairs.  This proposal relates to the definitions of "Participating in an IETF discussion or activity", and "Participating" and Section 5.1.2. 

There are two actors in Section 5.1.2: "Contributors" and "Participants".  Contributors are a subset of Participants. While there is an obligation on Contributors to disclose IPR of which they are aware which relates to their Contribution, there is also an IPR disclosure obligation on non-Contributor Participants, that is, those who have Participated in an IETF discussion or activity.  In this draft, "Participating" is defined to mean "acting in order to influence the outcome of a discussion relating to the IETF Standards Process.  Without limiting the generality of the foregoing, acting as a working group chair or Area Director constitutes "Participating" in all activities of the relevant working group or area."  

For non-Contributing Participants who are WG chairs or Area Directors, personal knowledge of IPR should be contemporaneous with action taken on the Contribution. Such actions could be the original submission of the Contribution, submission of updated drafts thereof or last call.  For example, a WG chair or Area Director serving in 2016 who assisted in the review of an Invention Disclosure (IVD) for their company in 2012 and has since forgotten about this IVD, does not "reasonably and personally" know of IPR meeting the conditions of Section 5.6 if the Contribution by another in their domain is made in 2016. In other words, there is no affirmative obligation on a WG chair or Area Director, for a Contribution within the Area Director's or WG chairs' domain, to go back and review company IP activities in which they were or might have been exposed to refresh recollection.  To clarify this, I would propose deleting the phrase "reasonably and" in Section 5.1.2.

Further, because WG chairs and Area Directors should not be expected to predict the outcome of the uncertain patent prosecution process, the phrase "may ultimately Cover that Contribution" should be deleted in Section 5.1.2. Even assuming a WG chair or Area Director has personal knowledge of a pending patent application, it is very difficult, if not impossible, to predict the outcome of patent prosecution and ultimate claim scope. Notwithstanding the definition of "Covers" or "Covered", there is no such thing as a "valid" claim of a patent application (including a provisional patent application).  To be exactly precise, "Covers" or "Covered" should only refer to claims of issued patents, but that discussion is for another time. For now, to bring certainty to the process, WG chairs and Area Directors should only be required to take a snapshot of the situation as it exists at the time of the Contribution related event (original submission, update, last call) of which they are participating to determine whether they then have personal knowledge of IPR related thereto.  

Thus, I would propose Section 5.1.2 be amended as follows:

If an individual Participates relative to a written Contribution (other than a Contribution that is not intended to be used as an input into the IETF Standards Process) made by another person and such Participant    personally knows of IPR meeting the conditions of Section 5.6 which the Participant believes Covers, or which the Participant personally knows his or her employer or sponsor may assert against Implementing Technologies based on such written Contribution, then such Participant must make a disclosure in accordance with this Section 5.

Also, the definition of "Participating in an IETF discussion or activity" and "Participating" should be amended as follows:

"Participating in an IETF discussion or activity": means making a Contribution, as described above, or in any other way acting in order to influence the outcome of a discussion relating to the IETF Standards
Process.  Without limiting the generality of the foregoing, acting as a working group chair or Area Director shall constitute "Participating" to the extent such person engages in discussions or review of a Contribution as part of the activities of their relevant working group or area.  "Participant" and "IETF Participant" mean  any individual Participating in an IETF discussion or activity.

Respectfully, Mike Cameron