Re: Proposed Update to Note Well

[Stephan Wenger <[e-mail]>]

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" <[e-mail]> 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
>
>--------------------------------------
>
>NOTE WELL
>
>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.
>
>