Re: Last Call: <draft-bradner-rfc3979bis-10.txt> (Intellectual Property Rights in IETF Technology) to Best Current Practice

[Brian E Carpenter <[e-mail]>]

On 27/01/2017 09:56, Scott O. Bradner wrote:
> this was worked out at great length many years ago - there may be a time to revisit the assumption but
> maybe not right now when we are trying to bring the basic ruleset up to date

I'd agree that this is not the moment to revisit something so basic,
but for the record I would oppose changing this. It is a pragmatic way
of avoiding any situation in which the IESG or the IETF is effectively
deciding whether or not a patent claim is valid.

   Brian

> Scott
> 
>> On Jan 26, 2017, at 3:52 PM, David Rudin (CELA) <[e-mail]> wrote:
>>
>> Thanks.  Didn't see it in the diff.  But my question remains.  Why is IESG making this presumption?
>>
>> -----Original Message-----
>> From: Scott O. Bradner [mailto:[e-mail]] 
>> Sent: Thursday, January 26, 2017 12:42 PM
>> To: David Rudin (CELA) <[e-mail]>
>> Cc: Jari Arkko <[e-mail]>; [e-mail]; [e-mail]
>> Subject: Re: Last Call: <draft-bradner-rfc3979bis-10.txt> (Intellectual Property Rights in IETF Technology) to Best Current Practice
>>
>> this is not new - see RFC 3979 section 4.1
>>
>> Scott
>>
>>> On Jan 26, 2017, at 3:15 PM, David Rudin (CELA) <[e-mail]> wrote:
>>>
>>> I'd like to better understand the reasoning behind the changes in 4(D).  Previously, the IESG did not make any determination regarding whether terms were reasonable and non-discriminatory.  The new text in that section now includes:
>>>
>>> "If the two unrelated implementations of the specification that are required to advance from Proposed Standard to Standard have been produced by different organizations or individuals, or if the "significant implementation and successful operational experience" required to advance from Proposed Standard to Standard has been achieved, the IESG will presume that the terms are reasonable and to some degree non-discriminatory. Note that this also applies to the case where multiple implementers have concluded that no licensing is required."
>>>
>>> It's not clear to me what IETF gains by making this presumption, especially given that the availability of two or more implementations does not mean that the implementers did any patent due diligence or licensing around the implementation.  It does, however, potentially expose IESG to risks in the event of patent litigation if implementers are basing their decisions on IESG's presumption.
>>>
>>> David
>>>
>>> -----Original Message-----
>>> From: ietf [mailto:[e-mail]] On Behalf Of Jari Arkko
>>> Sent: Wednesday, January 18, 2017 6:52 AM
>>> To: [e-mail]
>>> Cc: [e-mail]
>>> Subject: Re: Last Call: <draft-bradner-rfc3979bis-10.txt> 
>>> (Intellectual Property Rights in IETF Technology) to Best Current 
>>> Practice
>>>
>>> You've seen the last call message come through, but as the AD responsible for this document, I wanted to follow-up with a description of where I think we are with the document.
>>>
>>> This document went through a last call process in spring 2016, with a fair number of comments. We've taken the feedback in, and being less busy with the transition work that was undergoing last summer, have returned with a new document that we believe addresses those issues. The changes are substantial enough though that we think that a new last call is necessary.
>>>
>>> Note that given some textual reorganisation, the document is difficult to compare to the original RFC. There is a changes section, but having a more detailed listing would be beneficial.
>>> We have promised to provide this detailed section, and will do so within a week from now.
>>>
>>> The spring 2016 comments have been listed in
>>>
>>> https://www.ietf.org/mail-archive/web/ietf/current/msg100236.html
>>>
>>> along with some tentative solutions that were given for the editors. With some further discussion, I'm listing the main changes to the document from the previous last call below:
>>>
>>> * Stephen Farrell's concern re: remote vs. in-person attendees  was 
>>> resolved without text changes (Jari's mail on March 22)
>>>
>>> * Russ Housley's concern re: "IETF sanctioned" was resolved  per 
>>> Brian's and Harald's suggestions (Brian's mail on March 26).
>>>
>>> * Russ Housley's concern re: changes from the previous RFC  section is 
>>> valid (Russ's mail on March 25), and we will be acting  on that as 
>>> explained above.
>>>
>>> * Gonzalo Camarillo's concern re: ADs being assumed to read  all 
>>> documents in their area seemed valid and was fixed.
>>>
>>> We think that is incorrect if the future BCP on this topic explicitly  
>>> rules everything in the area to be something where the AD  
>>> participates in, even if he or she might not even be the AD  for the 
>>> group in question.
>>>
>>> We used a variation Spencer's wording (Spencer's mail on  March 30).
>>>
>>> OLD:
>>> 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.
>>> NEW:
>>> 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 working groups  he 
>>> or she is responsible for in an area.
>>>
>>> * A follow-up to Gonzalo's concern was raised later in the  discussion 
>>> re: ADs often seeing the materials late in the process.
>>> There seemed to be support for adding this to the document, which  we 
>>> have done:
>>>
>>> NEW:
>>> 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.
>>>
>>> * Alissa Cooper's editorial comments from her mail on April 1  were 
>>> acted up, except the first issue which was follow-up to  Gonzalo's 
>>> issue.
>>>
>>> * There was some discussion of including the IRTF in the document
>>>  in the same go, but the authors and the AD came to the
>>>  conclusion that it introduces too many dependencies.
>>>
>>>  Also, worth discussing during the last call, is that the new document
>>>  refers to stream managers that have not really been well defined
>>>  elsewhere.
>>>
>>> * Pete Resnick suggested to put back in the three principles to  
>>> Section 2 that were deleted from the previous RFC (April 11).
>>> We've done so; we should only make substantive changes  to the 
>>> original RFC when there's clear consensus to do so.
>>>
>>> * Pete Resnick suggested to put back the material from  RFC 3979 
>>> Section 4.1 that were deleted from the  previous RFC (April 11), which 
>>> we've also done.
>>>
>>> * Note that Pete Resnick had a concern on forcing people to  document 
>>> applicability to the contribution 5.4.2 (April 11). This may  require 
>>> further discussion, although I personally am inclined to agree  with 
>>> Pete. I had posted a response on April 25, for which there  was no 
>>> other response. Needs further discussion during 2nd last call.
>>>
>>> * Pete Resnick had a concern on adding the word "all" to Section 7  
>>> (April 11). This was an oversight, and has been corrected.
>>>
>>> * Section 7 has been amended to be clear that its latter part is for  
>>> information only.
>>>
>>> The changes to spring 2016 version of the I-D can be seen here:
>>> https://www.ietf.org/rfcdiff?url1=draft-bradner-rfc3979bis-08&url2=dra
>>> ft-bradner-rfc3979bis-10
>>>
>>> Jari Arkko, sponsoring AD for draft-bradner-rfc3979bis
>>>
>>
> 
>