Re: Expired patents

John C Klensin <john-ietf@jck.com> Fri, 20 June 2014 15:27 UTC

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Date: Fri, 20 Jun 2014 11:27:02 -0400
From: John C Klensin <john-ietf@jck.com>
To: GTW <gtw@gtwassociates.com>, Brian E Carpenter <brian.e.carpenter@gmail.com>
Subject: Re: Expired patents
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--On Friday, June 20, 2014 10:17 -0400 GTW
<gtw@gtwassociates.com>; wrote:

> agree with those who have observed the difficulties were IETF
> to
> "tag all those that cite expired patents"
> 
> see for example  History of the Patent Policy of the American
> National Standards Institute at
> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2451165
> 
> clip
> 
> "1) An SDO needs to protect itself from involvement in
> litigation about the accuracy and completeness of statements
> and about infringements of patents due to use of the standard."

George,

Thanks very much for this and even more so for the referenced
paper and the historical evolution trace at
http://www.gtwassociates.com/answers/EvolutionANSIPolicy.html.
I have hoped for many years that someone with the competence to
do so would draw all of that information together in a coherent
way.  What is most attractive to me about these notes is that
they are compiled from the standpoint of standards developers
and standards users, not legal hairsplitting or excursions into
theoretical attacks under various laws.

I strongly recommend that material to anyone who wants to make
comments or suggestions about IETF (or other SDO) patent policy.
A general understanding to that material could save all of us a
lot of time.

A few specific observations, fwiw:

(1) While most of the principles are generally applicable, some
of this material -- probably most of it other than the ISO/IEC
[1] and IETF [2] evolution notes -- is a little bit US-centric.
If you, or someone else, could find or develop parallel
materials for a few bodies with their primary focus on other
jurisdictions, it might add to the general understanding.  ETSI,
3GPP, CENELEC, JIS, GOST, and CBEMA strike me as particularly
interesting possibilities but others might be equally
interesting.

(2) As you know (but some participants in this list may not or
may periodically forget), ISO rules/directives are somewhat
different from the rules/directives applicable to ISO/IEC joint
work (i.e., in JTC 1) and the entanglements of the latter with
ITU-T under the Joint Development Agreement applicable to
certain networking standards.  Similarly, when I last looked
closely at it, the Joint Development Agreement did not require
that ITU-T apply the same rules to Draft Recommendations and
Recommendations that were and were not covered by that
agreement.   I think it would be helpful if you made those
distinctions explicit and either identified the differences or
noted that there weren't any as of particular dates or versions.

(3) More or less the same observation applies within the ANSI
sphere: my recollection is that several ASDs (formerly ASCs)
adopted policies that were more restrictive or specific than the
applicable ANSI rules and received ANSI approval of them as
"compatible".   At least based on quick skimming, your report
doesn't mention those variations, implying that everything in
uniform within the collection of ANSI and ANSI-accredited
entities.  It might be desirable to do so, if only as a
disclaimer.

(4) I have not carefully reviewed your IETF-related history [2].
A quick skimming didn't spot any significant problems.  I think
it would be useful if someone much closer to the development and
evolution of the IETF's model (appropriate present and former
authors, editors, and WG Chairs know who you are) would do a
careful review, sort out any differences of opinion with you,
and then, if appropriate, create an appropriate link to the the
history.   If nothing else, it might save some time explaining
to people why their latest great idea is something we discussed
and abandoned years ago.

Again, thanks,
    john



[1] http://www.gtwassociates.com/answers/EvolutionISOPolicy.html

[2] http://www.gtwassociates.com/answers/EvolutionIETFPolicy.html