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

John C Klensin <> Tue, 05 April 2016 07:46 UTC

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Date: Tue, 05 Apr 2016 03:46:08 -0400
From: John C Klensin <>
To: Michael Cameron <>
Subject: RE: Last Call on draft-bradner-rfc3979bis-08.txt ("Intellectual Property Rights in IETF Technology")
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We may just need to agree to disagree but, as Scott pointed out
and I remember from discussions at the time, the "reasonably"
language was the result of a long set of discussions and
negotiations with attorneys representing several organizations
that were active in supporting the IETF and a non-trivial number
of its participants.   I can't remember whether anyone from
Ericsson or any company that has since been absorbed by it were
included -- Scott would probably remember or could reconstruct
that if it were important.   My recollection is that the term
went in to avoid a potential loophole involving the need to
evaluate plausible deniability about what someone did or did not
know or believe.  Scott would probably remember (I don't and I'm
not sure I ever knew) if anyone made it a condition, e.g.,
indicated that they would, corporately, be uncomfortable about
having employees participate in the IETF unless that wording was

These things are often a delicate balance and I think we need to
be careful about taking it out without, at least, going back and
consulting the original organizations to be sure that it
wouldn't result in their reducing participation in and/or
support for the IETF.

More generally, in a climate in which there are increasing
questions being asked about the effect of cross-licensing
agreements and "we won't sue you if you don't sue us, but, if
you do, all bets are off" provisions on competition (not a legal
opinion, just what I read in the press), I'm reluctant to start
making changes to text and policies that have been around for
some time except as dictated by questions of clarity (I put my
suggestions about reorganization to stress principles in that
category) or as dictated by experience (the claim I've
understood Scott and Jorge to make for this revision).  

Along those lines, I don't see any text that requires people to
predict the outcome of the patent prosecution process.  Any text
that required that would definitely be unacceptable, but the
text to which you refer (carried forward from Section 6.1.1 of
RFC 3979) says "_believes_ Covers or may ultimately Cover..."
(emphasis mine) and not "knows", "predicts" or any other term
involving the future.  

Finally, no matter what one does, there are no certain rules for
ADs or WG Chairs in this or almost any other area.  Not only are
the positions very much about the exercise of good judgment,
but, as soon as text introduces wording about beliefs
(reasonable or not), there is going to be uncertainty and the
possibility of abuse.  That is actually part of the reason I'd
like to see more introductory and rationale material based on
professional ethics rather than trying to specify things only
via a collection of rules that are subjective and tied to
people's assertions about what they believe or might have
believed at some time in the past.  If certainty were really our
goal, we would have gone for RAND or FRAND rules, not disclosure
ones.   It has regularly suggested that we drop all of this
disclosure complexity and uncertainty and go to that but the
community, including many of the companies who have been
involved, have rejected that idea every time it has come up. 


--On Tuesday, April 05, 2016 00:30 +0000 Michael Cameron
<> wrote:

> We all have the best interests of the community in mind, but
> invariably, the individual views and objectives of the members
> of a diverse organization may not always align. Hence this
> civil and respectful dialogue has been helpful in
> understanding the various positions of the participants (lower
> "p"!). The position that I have taken is that the community is
> best served when the ADs and WG chairs are provided certainty
> when doing their jobs.  While it is good to have guideposts
> (Do the right thing), ultimately they have to have easy to
> understand rules.  That being said, I would continue to
> propose the removal of the words "reasonably and" from 5.1.2
> to conform it to the consensus that one need not undertake an
> IP search prior to acting on a Contribution. Also, because
> no-one should 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. 
> 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.
> The changes to "Participating in an IETF discussion or
> activity" and "Participating" are good:
> k. 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
> constitutes "Participating" in all activities of the relevant
> working group. "Participant" and "IETF Participant" mean any
> individual Participating in an IETF discussion or activity. By
> the nature of their office, IETF area directors may become
> aware of Contributions late in the process (for example at
> IETF Last Call or during IESG review) and, therefore and in
> such cases, cannot be expected to disclose any IPR Covering
> those Contributions until they become aware of them.
> Mike