As Ted says, the IETF should stay out of passing judgment on the
validity of claims and/or fighting patents. It's really way outside of
our charter. Anyone can set up a separate organization to do that if
he/she wants.
However, this case is just the worst of many. It is abundantly clear
that the IETF's current approach of treating each IPR claim on a
case-by-case, ad hoc basis is really hurting us. I've been involved in
IETF IPR issues for a while and time after time I see Working Groups get
totally stuck trying to evaluate the impact of a particular patent claim
(and then sometimes another, and another ...).
At this point we need more than guidelines. Our productivity is
suffering because they just aren't effective enough, soon enough. We
would benefit greatly from something deterministic, IETF-wide.
Eliminating IPR altogether will be difficult at best, probably
impossible, and I don't think trying to do so is worth our time.
However, there appears to be rough consensus emerging that an IPR
assertion is acceptable if any of the following are true:
- a license is explicitly not required.
- a license is explicitly free with no restrictions.
- a license is explicitly free with rights of "defensive suspension"
(what Harald calls "no first use").
I know of a couple cases where any "encumbrance" at all was considered
unacceptable, but the great majority have found one of these acceptable.
If an IPR assertion falls into any of these categories, then Working
Groups no longer need to consider it as an issue, and no longer should.
They can actually make progress. What an idea -- to have a general rule
worked out in advance by which you can deal with an IPR issue in one or
two minutes, and then go on.
So that's a proposal: If a claim falls into one of those three
categories it is acceptable, and WGs shouldn't consider it as an issue.
Let's get some time at the Washington meeting to talk about this.
swb
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