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On 11/6/2012 1:47 PM, Stephan Wenger
wrote:
Hi Russ, On 11.6.2012 14:01 , "Russ Housley" <housley@xxxxxxxxxxxx> wrote: ‘Sunlight Is the Best Disinfectant’ Sunlight is the best disinfectant,” a well-known
quote from U.S. Supreme Court Justice Louis Brandeis, refers to
the benefits of openness and transparency. I invoke this quote
often as executive director of the NYSSCPA, to illustrate that the
most credible and respected organizations operate in an
atmosphere of avowed openness. We should not only
accept criticism and suggestions, we should embrace them. If
questions from constituents, the public, or the media make leaders
or other responsible parties obfuscate, the questions are usually
valid and the answers are not. People who feel
uncomfortable under the bright light of scrutiny and
criticism often have something to hide. Todd Stephan:e Based on the number of late disclosures that are occurring, it is clear to us that we need to use very plain language to explain the responsibilities to participants.That's an interesting statement. To summarize the (long) message below, I don't think that empirical data supports that there are any significant numbers of disclosures of which it is likely that they are "late". I went through the recent IPR disclosures (July 2012 until present) to check against what documents they have been made. In tabular form: Draft-00: 13 Draft-01: 8 Draft-02: 7 Draft-03: 9 Draft-04 and later drafts: 14 Issued RFCs: 4 3rd party disclosures: 15 The 3rd party disclosures obviously are irrelevant here, as there is no disclosure obligation for third party patent rights per BCP 79, and where there is no obligation to disclose there cannot be a late disclosure. Of the four disclosures made against issued RFCs, only one had a match between an inventor's name and the RFC's author list. That one is pledged as RAND-Z. It's undoubtedly late, but I guess that the rightholder attempted to cure that lateness by offering advantageous licensing terms. The other disclosures are RAND, but there is no indication that the companies making the disclosure were contributing, at least not based on matching inventor/author names (or my vague recollection of who said what in meeting rooms at the time). It can well be that the disclosures are completely voluntarily, or that the disclosure requirement was triggered just recently. There are many examples on why this may have happened: one of the authors joint the company in question just recently (which is the case for one of the disclosures), or that the patent changed hands just recently (which was the case in one of the Opus-related declarations that looked, at the first glance, late, but clearly wasn't.) I will also note that one company that made a disclosure is not an IETF regular, and the other has a comparatively small delegation for its size. In conclusion, I don't believe that any of the four cases have been shown to be late disclosures, and my personal feeling is that it is highly likely that none of them is. As for the disclosures against older drafts (04+), they may or may not be late. A disclosure could be made against subject matter that has just recently been included into a draft that already has some history. A disclosure obligation may have been triggered because a participant from a given company, for the first time, decided to comment on the draft. And so on. Based on the information I have, I could not conclude that there is a single late disclosure, although I would consider it likely that there are a few. As for disclosures against drafts 00 through 03, I would argue that most, if not all, of these disclosures are probably timely. A year or so is not an unreasonable time frame for a company to make a disclosure, considering the amount of paperwork and coordination required to do so. It's not only that a company needs to determine, for itself, whether a disclosure is required (draw up a claim chart, have it checked by legal, understand the role of the participant, understand the--rather exotic--IETF patent policy among the other dozens of policies of bodies the company may be involved in), but the company has also to settle on the licensing terms they wish to offer (which can involve standards people, legal, and business folks, and in many cases requires multi-level approval). I have run that process for one of the larger IETF participating companies in the past, and believe me, a year is not unrealistic, even after the policy-understanding-and-advocating phase is behind that company. As our policy does NOT specify another timeframe, I don't think that an argument to the contrary is bearing as much weight as the procedural argument made here. (Yes, when analyzing the drafts I have been sloppy in not distinguishing between WG and individual drafts. I don't think that would change the picture significantly.) So, to summarize, out of the 60 or so non-third-party disclosures that have been made over the last 4+ months, only "a few" may or may not be late; the rest almost certainly is not. Also, I have not seen a trend going towards late disclosures. Quite contrary, I have seen a trend towards early disclosures. I do not believe that, based on this data, there is a need to change the Note Well. If you folks still think a change is needed, then at least do not make a change in such a way that the new Note Well does not correctly interpret the policy we have. The way to fix the "timeliness" of disclosures is to change BCP 79, by adding a definition of timeliness, preferably a hard one (six months or something like this). StephanRuss On Nov 6, 2012, at 1:27 PM, Stephan Wenger wrote:Hi, Russ, can you explain why the IESG considers it necessary to tinker with the Note Well? As for the substance, I don't like the text for two reasons that can be found inline. Stephan On 11.6.2012 10:00 , "IETF Chair" <chair@xxxxxxxx> wrote:The IESG is considering a revision to the NOTE WELL text. Please review and comment. Russ === Proposed Revised NOTE WELL Text === Note Well This summary is only meant to point you in the right direction, and doesn't have all the nuances. The IETF's IPR Policy is set forth in BCP 79; please read it carefully. The brief summary: - By participating with the IETF, you agree to follow IETF processes. - If you are aware that a contribution of yours (something you write, say, or discuss in any IETF context) is covered by patents or patent applications, you need to disclose that fact.1) I'm not in favor of this formulation because it can be read to impose a stronger disclosure obligation on a participant than BCP 79. Specifically, as Lars has already pointed out and according to BCP 79, I'm not "needed" to disclose a patent I'm reasonably and personally aware of that reads on a document of mine, if that patent is assigned to someone else but myself and my sponsor/employer, ... For good reasons, BCP 79 does not require third party disclosures. I hope that the (few) added words can be accommodated. 2) On the other hand, the issue of timeliness is not covered at all (as others have already pointed out.) I'm especially worried of point 1, which can be seen as a policy change through the back door. If, based on this hypothetical Note Well, we would end up with an IETF disclosure culture in which third party disclosures would become the norm rather than an exception, we could well end up with a brain drain especially from folks not quite as senior in their respective company hierarchy to have the leeway to ignore company guidance about patents.- You understand that meetings might be recorded, broadcast, and publicly archived. For further information: Talk to a chair, ask an Area Director, or review BCP 9 (on the Internet Standards Process), BCP 25 (on the Working Group processes), BCP 78 (on the IETF Trust), and BCP 79 (on Intellectual Property Rights in the IETF). -- Regards TSG "Ex-Cruce-Leo" //Confidential Mailing - Please destroy this if you are not the intended recipient. |