Stephan Wenger <stewe@xxxxxxxxx> wrote: >... > > Clearer? Much clearer. Thank you! > On 11.7.2012 09:57 , "John Leslie" <john@xxxxxxx> wrote: >>Stephan Wenger <stewe@xxxxxxxxx> wrote: >>>... >>> It is, in most cases, not to the advantage of a rightholder to disclose >>> a patent unless he is undeniably obligated to do so... >> >> This is a really strange statement, at first blush. > > The vast majority of non-third-party patent disclosures are made by the > rightholder's legal, and not only discloses the patent, but also promises > certain licensing terms (most often RAND, RF, or a non-assert promises > that has many similarities with an RF license). Indeed, they mostly do include something about licensing terms -- without these, it would be very difficult to evaluate the impact of the IPR on deployment. We are always glad to see these. > (This is a shortcut of the official procedure which would require the > IETF brass to ask for licensing terms after an disclosure without > terms has been made.) Actually no. There is no "IETF brass" and there is no requirement to have licensing terms: they merely make things easier (and I do know of cases where a WGC "suggested" amending an IPR disclosure to include these). > Having made such a statement restricts the freedom of business of the > rightholder with respect to these patents. Technically true, certainly... > Restricting the freedom of business is usually not a useful thing for > a business. Not true. Businesses enter _many_ contracts which restrict their "freedom" but increase their profitability. > Further, the mere knowledge of the existence of a patent claim against a > specification can derail the inclusion of that technique from the draft. Good point! In too many cases, the patent system is "damage" that we feel a need to "route around". :^( > Assuming the technique was proposed not only for the benefit of getting a > patent in, but for other motives (which, I hope, is still the case of the > vast majority of contributions made to the IETF--I'm not so sure in some > other standards bodies :-), having a patent disclosure against it is not > to the advantage of the proponent. That rather depends upon the _content_ of the disclosure. A disclosure without even a hint of licensing terms definitely hurts the chances of a particular technology. But I have seen disclosures which _help_ the chances of the technology. > Of course, the legal folks also have to keep in mind that not disclosing a > patent also can have negative consequences if that patent were asserted > against the standard later. Yes! Fortunately, courts recognize certain patents as "damage" and help us route around them. ;^) > So they check very carefully whether they are "undeniably required to" > make a disclosure, but if they think they are, they also make such a > disclosure. "undeniably required to" is very unfortunate wording. There is no such thing as a requirement you can't find _some_ lawyer to argue against, for a price... Legal departments _do_ try to balance the risks of losing rights due to a failure-to-disclose against the risk of losing licensing revenue. This is _not_ helpful to our process!!! > Gaming the system by over-declaring (to kill a technology through FUD) or > especially under-declaring (in the hopes to get a patented technology in > the standard without agreeing to encumbrances) is known to have happened, > but it's IMO really not that big an issue any more--mostly, because courts > have brought the hammer down on rightholders who tried. There are many more cases (of both) where courts have not yet "punished" the over-declaring/under-declaring. :^( The "late-declaration" problem, as viewed by the IESG, stems from declarations received _after_ an IETF-wide LastCall has been issued. IMHO the individual members are bothered by delays shorter than that, but don't consider those to be issues for the IESG. There (alas!) are cases where the IETF participant doesn't realize the IPR issue exists until IETF LastCall is issued. But the perceived "normal" case is one where the IETF participant knows of the IPR before an I-D is even accepted as a WG draft -- but rather than disclosing him/herself, asks the legal department of his/her employer to make the disclosure, and considers that to fully satisfy the obligation. IMHO, the IPR-process discussions this week are mainly an attempt to get across to folks that passing the buck does _not_ satisfy your obligation: the obligation attaches to the IETF participant, not the employer; and failure to keep prodding the legal department fails the "as soon as reasonably possible" test. -- John Leslie <john@xxxxxxx>