On 4/4/16 5:06 PM, Stephan Wenger wrote: > Hi all, > > Barry and I had a chat about this. I also had offline conversations > with Mike Cameron and a chat with Joel. Barry and I at least agree on > the problems. The solutions are mine for now, and they absolutely are > in need of wordsmithing... > > Based on the discussion so far, there seem to be a need for the following: > > 1. A clarification that an AD, by the nature of his/her office, > regularly becomes aware of Contributions late in the process (for > example at IETF Last Call) and, therefore, cannot be expected to > disclose any IPR Covering those Contributions until such late time in > the process. > To fix this point, a simple explanatory sentence somewhere in section > 5.2.2 would suffice. For example “By the nature of their office, IETF > area directors regularly become aware of Contributions late in the > process (for example at IETF Last Call) and, therefore and in such > cases, cannot be expected to disclose any IPR Covering those > Contributions until such late time in the process.” > > The purpose of this sentence is to protect an AD and its sponsoring > company from allegations, both within the IETF and in courts, that they > disclosed late against policy. > > 2. A clarification or, more likely, a substantial change that, like any > other individual in the IETF, also an AD has the option to recuse > himself from involving himself/herself in the decision making process of > a document, even a document in his own area. For example, an AD that did > never comment on a document and abstained during the IETF Last Call > would not incur a disclosure obligation, even if the Contribution were > in his/her own area. I kind of have a problem with this point. it signals that you would have to make a disclosure if you did participate. which is tantamount to disclosing but with an extraordinarily incomplete statement. > This second point is more tricky. Is the formulation currently in the > draft, which defines ADs as Participants, inline with what’s written in > point 2? I’m coming around to think that it does not. Instead, I think > we have a contradiction in the current draft—on one hand, an AD who > intentionally stays away from influencing the decision process regarding > a Contribution should not incur an obligation based on the underlying > principle of the policy—no more than anyone else; but the text about ADs > being Participants rules out that interpretation. Having contradictions > in patent policies is a Very Bad Idea since at least Rambus (ca. 2003). > Is that correct so far? > > Based on the current formulation, and without violating the policy, an > AD who is under the gun of his IPR department not to disclose a specific > IPR has only the option to step down. Is this what we want in each and > every case? Or would we rather be pragmatic and allow an AD to recuse > himself/herself occasionally? If yes, I think we need language > indicating that such a mechanism is available, but also is meant to be > used sparsely, and at least implying that ADs who are forced to use it > more than under exceptional circumstances are indeed to step down. > > The paragraph below tries to express this. The markup will probably > only be visible if you choose to view the HTML version of this email. > > “ > k. "Participating in an IETF discussion or activity": means making a > Contribution, as described above, or in any other way acting in > order to influence the outcome of a discussion relating to the > IETF Standards Process. Without limiting the generality of the > foregoing, acting as a working group chair or Area Director > constitutes "Participating" in all activities of the relevant > working groupor area. "Participant" and "IETF Participant" mean > any individual Participating in an IETF discussion or activity. _Under _ > _extraordinary circumstances only, an AD may choose not to Participate _ > _in the discussion or activity of his/her area, recuse himself/herself _ > _from IESG deliberations of related documents, and abstain during _ > _the IESG ballot process, thereby not incurring the obligations based_ > _on Participating._ > " > > Stephan > > > On 4/4/16, 11:39, "barryleiba@xxxxxxxxx <mailto:barryleiba@xxxxxxxxx> on > behalf of Barry Leiba" <barryleiba@xxxxxxxxx > <mailto:barryleiba@xxxxxxxxx> on behalf of barryleiba@xxxxxxxxxxxx > <mailto:barryleiba@xxxxxxxxxxxx>> wrote: > > A follow-up here: > > I'd be more comfortably with something more waffly, something more > like this: > > Without limiting the generality of the foregoing, acting as a working > group chair or Area Director can often be considered "Participating" > in all activities of the relevant working group or area; as such, > working group chairs and Area Directors are expected to make a best, > good-faith effort to carry out the responsibilities of Participants. > > Or perhaps we want to separate WGCs from ADs here, and the text needs > more work in any case, but I hope people see the general point. > > Barry > > On Mon, Apr 4, 2016 at 10:27 AM, Barry Leiba > <barryleiba@xxxxxxxxxxxx <mailto:barryleiba@xxxxxxxxxxxx>> wrote: > > The "reasonably and personally aware" applies to the > IPR, not to the > participation. > > > I think this is incorrect. > > According to section 5.1.2 (disclosure requirement based on > Participation, not own IPR), a disclosure obligation exists > if “the > Participant believes Covers or may ultimately Cover that > Contribution”. I don’t think anyone could argue that an AD > has a > “believe” in a patent or application he/she is aware of Covers a > Contribution when he has never seen the Contribution. > > > Would you accept "I didn't read the draft" as an acceptable reason > that someone engaged in active discussion on a draft didn't > disclose? > > We don't have different levels of Contributor here. Someone > making a > Contribution has an obligation to disclose, even if s/he was one of > those who said, "I didn't read the draft, but...." If we > declare the > ADs to be Contributors, why does the same not apply to them? > > A late disclosure is better than no disclosure > > > I hope we all agree on that! > > clearly, an AD > has a much better justification of making such a late > disclosure. I > would hope that no one would complain if an AD makes a late > disclosure > and, when asked for the reason of lateness, he says “I was not > responsible AD; I came across this during final review in > IETF last > call, and just identified this. “ In fact, people should > appreciate > this. > > > Maybe so, but as it stands now in the document, it's still a late > disclosure, and there might still be backlash, legal concerns by > employers, and reluctance to put people in that position. > > If that's the consensus, then there we have it... but I think we > should be very careful about unintended consequences of this one. > > Barry > >
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