Re: Expired patents

John C Klensin <john-ietf@jck.com> Fri, 20 June 2014 15:43 UTC

Return-Path: <john-ietf@jck.com>
X-Original-To: ipr-wg@ietfa.amsl.com
Delivered-To: ipr-wg@ietfa.amsl.com
Received: from localhost (ietfa.amsl.com [127.0.0.1]) by ietfa.amsl.com (Postfix) with ESMTP id 4EA7C1B2832 for <ipr-wg@ietfa.amsl.com>; Fri, 20 Jun 2014 08:43:46 -0700 (PDT)
X-Virus-Scanned: amavisd-new at amsl.com
X-Spam-Flag: NO
X-Spam-Score: -3.251
X-Spam-Level:
X-Spam-Status: No, score=-3.251 tagged_above=-999 required=5 tests=[BAYES_00=-1.9, RCVD_IN_DNSWL_LOW=-0.7, RP_MATCHES_RCVD=-0.651] autolearn=ham
Received: from mail.ietf.org ([4.31.198.44]) by localhost (ietfa.amsl.com [127.0.0.1]) (amavisd-new, port 10024) with ESMTP id XZKGEXJG282u for <ipr-wg@ietfa.amsl.com>; Fri, 20 Jun 2014 08:43:45 -0700 (PDT)
Received: from bsa2.jck.com (ns.jck.com [70.88.254.51]) (using TLSv1 with cipher DHE-RSA-AES256-SHA (256/256 bits)) (No client certificate requested) by ietfa.amsl.com (Postfix) with ESMTPS id DBB151B282D for <ipr-wg@ietf.org>; Fri, 20 Jun 2014 08:43:44 -0700 (PDT)
Received: from [198.252.137.115] (helo=JcK-HP8200.jck.com) by bsa2.jck.com with esmtp (Exim 4.82 (FreeBSD)) (envelope-from <john-ietf@jck.com>) id 1Wy0wL-0005qv-C0; Fri, 20 Jun 2014 11:41:21 -0400
Date: Fri, 20 Jun 2014 11:43:38 -0400
From: John C Klensin <john-ietf@jck.com>
To: Brian E Carpenter <brian.e.carpenter@gmail.com>
Subject: Re: Expired patents
Message-ID: <720F7048388C4B7CA2F6B29C@JcK-HP8200.jck.com>
In-Reply-To: <CFC92BA1.4944C%stewe@stewe.org>
References: <53A38D52.1070604@gmail.com> <CFC92BA1.4944C%stewe@stewe.org>
X-Mailer: Mulberry/4.0.8 (Win32)
MIME-Version: 1.0
Content-Type: text/plain; charset=us-ascii
Content-Transfer-Encoding: 7bit
Content-Disposition: inline
X-SA-Exim-Connect-IP: 198.252.137.115
X-SA-Exim-Mail-From: john-ietf@jck.com
X-SA-Exim-Scanned: No (on bsa2.jck.com); SAEximRunCond expanded to false
Archived-At: http://mailarchive.ietf.org/arch/msg/ipr-wg/f3LtBGkRdhW67gI1NL1wIRsYiLk
Cc: IPR WG <ipr-wg@ietf.org>
X-BeenThere: ipr-wg@ietf.org
X-Mailman-Version: 2.1.15
Precedence: list
List-Id: IPR-WG <ipr-wg.ietf.org>
List-Unsubscribe: <https://www.ietf.org/mailman/options/ipr-wg>, <mailto:ipr-wg-request@ietf.org?subject=unsubscribe>
List-Archive: <http://www.ietf.org/mail-archive/web/ipr-wg/>
List-Post: <mailto:ipr-wg@ietf.org>
List-Help: <mailto:ipr-wg-request@ietf.org?subject=help>
List-Subscribe: <https://www.ietf.org/mailman/listinfo/ipr-wg>, <mailto:ipr-wg-request@ietf.org?subject=subscribe>
X-List-Received-Date: Fri, 20 Jun 2014 15:43:46 -0000

Hi.

As several others have pointed out, automatic timeouts of any
sort are likely to be very dangerous even if done well.  They
would also violate the key principle that the IETF makes no
attempt to evaluate the validity of patent claims -- evaluation
of whether or not a patent has expired or is no longer
applicable is pretty definitely such an evaluation.

Suggestion for consideration: Suppose we could safely separate
IPR disclosures about a particular specification or technology
from generic statements about a company's patent portfolio in
relation to the IETF.  I think that distinction should be
straightforward, but IANAL and would hope we could get advise
from Counsel on that before proceeding.  If we could, it seems
to me that it would be straightforward to automate a process by
which a reminder were sent out some number of years (say 10)
since the last update reminding the presumed rights-holder that
a disclosure had been filed a decade earlier and inviting them
up update the disclosure with any relevant new information of
which they were aware.  If kept automated and generic enough, it
would involve no evaluation on the IETF's part.  If the
discloser wanted to say "as far as we know, this has expired",
"all even-numbered claims have been invalided by courts and we
are no longer considering trying to enforce them", or even "we
have defended these claims in courts several time and collected
damages from those who infringed", it would provide a reminder
of the opportunity to provide that additional information.  If
not, it wouldn't have cost us anything or exposed us to new
risks.

I don't know if it would produce enough responses to be worth
the trouble and don't know any way to find that out other than
to make a leap of faith and try it.  I also don't know whether I
would recommend that given other priorities and calls on
resources.

It seems to me that is about the best we could sensibly do in
the area of disclosures whose implications change with time
(including, but certainly not limited to, expirations) without
causing more problems or increasing risk.

best,
   john