Re: Proposed Update to Note Well

Jorge Contreras <> Fri, 22 June 2012 02:49 UTC

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From: Jorge Contreras <>
Subject: Re: Proposed Update to Note Well
Date: Thu, 21 Jun 2012 22:49:00 -0400
To: Stephan Wenger <>
Cc: IETF <>
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On Jun 21, 2012, at 7:01 PM, 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

The word would be "control". 

> Regards,
> Stephan
> On 6.21.2012 15:10 , "IETF Chair" <> 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.