Lawrence Rosen wrote: > Steven Bellovin wrote: > >> Right. Any IPR policy has to acknowledge the fact that relevant >> patents can be owned by non-troll non-participants. (Too many >> negatives there -- what I'm saying is that IETFers don't know of all >> patents in the space, and there are real patent owners who care about >> their patents, even though they aren't trolls.) >> > > I agree, but I suggest that our new IPR policy ought to set expectations for > how we deal procedurally with such outside encumbrances when discovered. The > defensive termination provision in most contributors' IETF patent grants can > also help to protect our specifications from trolls and some third-party > patent owners, depending upon how those grants are worded. > For several reasons, it is difficult to imagine an IETF-wide procedure that allows the existence of a patent to trump other considerations of protocol feasibility and deployability: - Many patents are believed to be invalid or indefensible. IETF as an organization cannot get in a position of deciding whether a patent is valid or defensible, both because it doesn't really have the resources or in-house expertise to do this, and because the only way to know for sure is to go through a lengthy court process, perhaps in several different countries. And yet, if there is a consensus among those who are invested in the technology that a particular patent isn't going to present an actual obstacle to deployment, it makes sense to let it go forward. The alternative - letting a dubious patent block or significantly delay approval of an IETF standard - gives dubious patents much more power than they deserve. - A similar argument can be made for patents that are valid and defensible, but for which the applicability to a given protocol is dubious. - There have been cases in the past where apparently valid and applicable patents, existed but would expire soon. Some of our standards appear have a useful lifetime of many decades. From that point of view, a patent that has been in force for a few years might be a short-term concern. Whether this is the case depends on many factors, including the remaining lifetime of the patent and the nature of the protocol under discussion. An IETF-wide policy doesn't seem to make sense here, especially if the effect of that policy were to delay work on a protocol that probably wouldn't be ready for deployment until the patent had expired, or nearly so, anyway. - There are cases for which a patent with an RAND license presents an insignificant barrier to deployment, because a substantial monetary investment would be required in any event to implement a protocol. For instance, a protocol that inherently requires expensive hardware to implement, but for which the license fee is a small portion of that required to pay for the hardware. Again, this is something that needs to be evaluated on a case-by-case basis. - Just because it appears at first that a protocol might be impaired by the existence of a patent, doesn't mean that a workaround won't be found as the protocol is developed. This has happened many times. Also, patent holders have been known to make licenses available under more attractive terms precisely because the technology was being considered for an IETF standard. That kind of pressure/encouragement might well be more effective at making useful technology available to the Internet community than a blanket patent policy. Speaking as someone who has been involved in IETF for about 17 years now, by far the best way to ensure that IETF protocols to be safe for open source implementors is for open source implementors to participate in IETF working groups. IETF's policy of rough consensus means that every interested party has a strong voice when it comes to objecting to things that will hamper implementation or deployment. _______________________________________________ Ietf@xxxxxxxx https://www1.ietf.org/mailman/listinfo/ietf