--On Thursday, July 30, 2009 16:09 -0700 Stephan Wenger
<stewe@xxxxxxxxx> wrote:
> Hi Brian,
>
> One can sit in a WG meeting for years, and never incur a
> disclosure obligation under BCP78, correct? Just sitting
> there and not saying/writing/contributing a thing does not
> trigger a disclosure obligation. Same goes for merely being
> subscribed to a mailing list. This is a major difference from
> the organization where that infamous case law of Pete's has
> had its playground.
Stephan,
This is going to be about as far from legal advice as you can
get. If you need legal advice, consult you own attorney or try
to get the Trust's to say something authoritative.
However, as I read the Note Well, the intent of 5378, etc., I
would think that, if you wanted to avoid any risk of someone
claiming that you needed to disclose and having a judge agree
with them, you should maintain a clean room attitude toward any
WG for which you held IPR that you wanted to keep secret.
"Clean room attitude" would presumably keep you out of its f2f
meetings, off its mailing list, and maybe even off the IETF list
when Last Calls were issued.
In other words, while the strongest and most obvious obligations
fall on Contributors, I believe that those documents can be read
to require disclosure by anyone with a reasonable expectation of
knowledge of the patent claim and a reasonable expectation of
knowledge of what the IETF was doing in the area.
Again, not only am I not a lawyer, but I am certainly not a
likely candidate for judge in a hypothetical future patent case.
But the costs of being wrong about a decision to not disclose a
patent that you later assert can be high enough that I think
someone who wants to play that game ought to be hyper-cautious.
john
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