Re: Motivation to submit an idea in IETF?

[Dean Willis <[e-mail]>]

On Jan 21, 2010, at 7:51 PM, Greg Daley wrote:

>
> I think that whetever the reason, documents submitted to the IETF
> are less likely to become standards track RFCs if there is critical
> IPR which must be licensed in order to construct the protocol.

As somebody who makes a living explaining patents to people who feel  
threatened by an infringement suit, the simple fact is that the IETF  
is appallingly (and blissfully) ignorant of the vast number of patents  
that are filed relating to our RFCs. In general, we do not discover  
that there is critical IPR until well after the  protocol is  
published, then we get mad about it.

One rational for publishing rather than patenting is cost. If the goal  
is to assure your rights to use your own invention rather than paying  
a fee to a patent troll for that use, thorough publication of the  
invention as early as possible may be a cost-effective solution in  
countries whose regimes discredit 3rd-party patents of already- 
published ideas. I've used this technique fairly effectively in patent- 
busting in the US. I've even used mailing-list records to provide  
invalidation arguments.

Writing an internet-draft describing the invention is cheap. Filing a  
patent application is expensive. There are documentation fees, legal  
fees, artwork fees, filing fees, maintenance fees, patent search fees,  
and the ongoing hassle and expense of examination, re-examination,  
forced continuations, and so on. You might spend upwards of $50,000 to  
get a patent (although some do cost much less, especially the do-it- 
yourself filings). And then you have to enforce the patent, and that's  
not cheap; you have to look for people who might voluntarily license  
it and negotiate with them, and you have to look for people who have  
infringed it and work through a more adversarial negotiation or even  
an infringement suit. I've seen infringement suits run above half a  
million dollars.

But if you have a patent, don't maintain it, and don't enforce it, it  
gets weaker or might even completely evaporate. Sure, it serves as  
strong prior art to keep some other bozo from patenting the exact same  
thing even if you let the patent "go to seed", but all they have to do  
is tack on one important additional claim that your didn't foresee,  
and you're back to having to pay the troll.

A submitted application is strong prior art. A published paper or  
internet-draft is pretty good, but not as good. A really clear write- 
up in mailing-list email can be helpful, especially if the "inventor  
of record" (the person  whose name is on the patent app) is an active  
participant on that mailing list.

So it all comes down to intent: If your business is a real participant  
in the industry and you're going to make your money off of building  
and selling a product that includes the invention, you may get  
adequate protection for your business by publishing the invention  
early on. If you're a big fish in the industry, then you probably can  
benefit from having a pool of patents for cross-licensing with the  
other big fish, so filing might be useful. And of course, if you're  
not really participating in the industry but hope to make money off of  
licensing the invention, then filing is the only way to go, although  
it's harder to make money off such a patent than you might think.

In: "A Farewell to Alms: A Brief Economic History of the  
World." (Princeton, NJ: Princeton University Press, 2007. xii + 420  
pp. $30 (cloth), ISBN: 978-0-691-12135-2), the author Gregory Clark  
cites a number of cases relating to patented inventions in the textile  
industry, where the inventors who relied on patents for their funding  
died penniless, but the people who just built things and made product  
with them experienced economic success. It's a good lesson to us all.  
Its' a "good read" as well, and I highly recommend it; my depressing  
theory, however, is that we're falling off the tail of the success  
hump and sliding back into a strictly Malthusian model of supply,  
demand, and starvation.

--
Dean