RE: When is using patented technology appropriate?

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Keith Moore wrote:
> 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:

Who suggested otherwise? It is not the existence of the patent that matters,
but its unavailability under license terms that allow implementation in
*any* software.

The more feasible and deployable the protocol, the more important will be
FOSS implementations. Who's trumping who?

/Larry


> -----Original Message-----
> From: Keith Moore [mailto:moore@xxxxxxxxxx]
> Sent: Thursday, October 25, 2007 1:31 PM
> To: lrosen@xxxxxxxxxxxx
> Cc: ietf@xxxxxxxx
> Subject: Re: When is using patented technology appropriate?
> 
> 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.


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