--On Thursday, January 26, 2012 12:32 +0100 Harald Alvestrand
<harald@xxxxxxxxxxxxx> wrote:
> John,
>
> a worry I have with going out with such a massive demand set
> for this IPR code violation is that we'd be encouraging the
> other IPR behaviour we've seen: That of saying nothing.
I understand this concern, but that takes us into lawyer
territory. Since the courts, at least in some countries, have
ruled that patents are unenforceable if the technology was
pushed forward into standards in violation of disclosure rules
(that is a deliberately-vague summary, not an attempt to state
the legal situation), I don't know if companies would be better
off saying nothing, ever, until they ambushed someone in court,
or disclosing later. If the IETF needs to make decisions on
that basis, I'd like us to get clear advice (if such a thing is
possible -- a combination about the situation, not the source of
advice) from Counsel.
> The current Huawei people who caused this disclosure to be
> filed deserve our praise for doing the Right Thing now, even
> while the people in the past who did not deserve our
> condemnation.
Absolutely. While I recognize it as difficult, that is
precisely why I'd like to have Huawei clarify that those who did
not disclose in the past did so in violation of what I hope is
the company policy to conform to the rules of any standards body
in which their employees are participating. If that is actually
the case (as I assume it is), then my proposed "demand set" is
not "massive": we adjust the authorship to remove the inventor,
we try to get the reciprocity clause narrowed or removed, and we
move on.
The question of whether the IETF should accept and file a
disclosure statement that is "signed" only by title, especially
a title whose meaning is unclear outside the particular company,
ought to be largely separate from this discussion: it is really
an issue that I'd hope that the IETF Trust would discuss with
Counsel and then appropriately advise the Secretariat and the
community about how such statements should be handled. If we
actually don't have any rules or guidance today, it may be
unreasonable to ask Huawei to amend their filing on that basis.
Note that removing the broad reciprocity provision from this
particular IPR disclosure /licensing statement ought to be less
problematic from Huawei's standpoint than potentially having the
patent (and potentially related ones) invalidated or rendered
unenforceable -- an action that would be completely outside our
control.
> On one point, however, I'm aligned:
>
> On 01/26/2012 10:31 AM, John C Klensin wrote:
>>
>> (3) A request to the company involved to remove the
>> reciprocity clause from the license stated in the disclosure
>> statement. As a show of good faith, they should agree to
>> derive no benefit from the patent other than what praise
>> accrues from having it awarded.
> Indeed, this reciprocity clause is of the form that I used to
> complain to Cisco's IPR lawyer about Cisco making when I was
> at Cisco: It asserts the right of withdrawal of this license
> for *any* use of *any* patent against Huawei - that means that
> anyone who dares to depend on this license is effectively
> granting a license to *all* their patents to the holder of
> this patent.
> The proper scope of reciprocity clauses is a fertile ground
> for debate (and nearly impossible to hold a debate on,
> unfortunately), but this type is one that I am not happy to
> see.
While I agree, I think it is a separate discussion. That
discussion probably needs to start with a core principle of the
IETF IPR policy that we do not constrain the conditions that can
be adopted and disclosed at all. If we are not going to change
that, then Huawei (or Cisco, or many others) are certainly
permitted to insert such a clause. If there is a problem in the
IETF, it is only that WGs may not have been sufficiently
diligent about evaluating the possible effects of such
provisions on the practice of potentially-standard technologies.
I think that, for this situation and any that might be similar
to it in the future, we need to concentrate on the particulars
of the situation and the degree to which it is appropriate for a
company to benefit from the inappropriate behavior of someone
who presumably works for them, is being sponsored by them to
participate in the IETF, etc. I deliberately wrote my note so
that it could evolve into a general set of guidelines on such
issues should the community think that appropriate.
I'm also conflicted about the information (or lack thereof) that
we have available. My personal sense of justice says that we
should really understand, for example, whether there is any
chance that the inventor was not aware of the patent
application. Others have made similar suggestions. On the
other hand, it is possible that trying to dig out and evaluate
that information would turn this situation into far more of a
judicial-like provision than I'm comfortable with. Again,
advice from the Trust and Counsel would be very much in order if
it is feasible (and the reasons would be interesting and useful
information if it is not).
john
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