Re: Last Call on draft-bradner-rfc3979bis-08.txt ("Intellectual Property Rights in IETF Technology")

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Some questions and comments, much of them editorial, though nonetheless important:

- Section 2:

The third paragraph of 3979 section 2 (with the 2026 "principles") was deleted. I kinda liked it. Can we put it back in? So basically I'm suggesting:

OLD
    Section 1 defines...
NEW
    RFC 2026, Section 10 established three basic principles regarding
    the IETF dealing with claims of Intellectual Property Rights:

    (a) the IETF will make no determination about the validity of any
        particular IPR claim
(b) the IETF following normal processes can decide to use technology for which IPR disclosures have been made if it decides that such
        a use is warranted
    (c) in order for the working group and the rest of the IETF to have
        the information needed to make an informed decision about the
        use of a particular technology, all those contributing to the
        working group's discussions must disclose the existence of any
IPR the Contributor or other IETF participant believes Covers or
        may ultimately Cover the technology under discussion.  This
applies to both Contributors and other participants, and applies
        whether they contribute in person, via email or by other means.
        The requirement applies to all IPR of the participant, the
        participant's employer, sponsor, or others represented by the
        participants, that is reasonably and personally known to the
        participant.  No patent search is required.

    Section 1 defines...
END

- Section 4:

A bunch of (D) (what was section 4.1 from 3979) was deleted. It seemed like sensible stuff. Why was it removed? Was it just the 2026 reference? Couldn't we just update that to refer to 6410?

- Section 5.2.1 (A): The stuff after the first sentence is more completely described in 5.4.2. How about a forward reference here instead:

OLD
                                                                  For
       example, if the Contribution is an update to a Contribution for
       which an IPR disclosure has already been made and the
       applicability of the disclosure is not changed by the new
       Contribution, then no new disclosure is required.  But if the
       Contribution is a new one, or is one that changes an existing
       Contribution such that the revised Contribution is no longer
       Covered by the disclosed IPR or would be Covered by new or
       different IPR, then a new disclosure must be made.
NEW
       See section 5.4.2 for a discussion of when updates need to be
       made for an existing disclosure.
END

- Section 5.4.2(A):

A couple of cleanups items in this section, and one concern. First, the cleanup: Clause (2) could use the same "unless" clause that (1) and (3) have; if you've got enough info regarding the patent application in the disclosure to find that it's been abandoned, there shouldn't be a hard requirement to update the disclosure. Also, clause (4) says "causes the Disclosure to be covered" when it should say "causes the Contribution to be covered". But even leaving that aside, clause (4) is a really a noop: If there is a material change to the document, that is in and of itself a new contribution, and is therefore addressed by section 5.1 or the "inherited by revisions" sentence at the bottom of 5.4.2(A). So, for the first part of 5.4.2(A), I suggest the following:

OLD
    A. An IPR disclosure must be updated or a new disclosure made
       promptly after any of the following has occurred: (1) the
       publication of a previously unpublished patent application,
       (unless sufficient information to identify the published
       application was disclosed when the unpublished application was
       disclosed), (2) the abandonment of a patent application (3) the
issuance of a patent on a previously disclosed patent application
       (unless sufficient information to identify the issued patent was
       disclosed when the patent application was disclosed), (4) a
       material change to the IETF Document covered by the Disclosure
       that causes the Disclosure to be covered by additional IPR.
NEW
    A. An IPR disclosure must be updated or a new disclosure made
       promptly after any of the following has occurred unless
       sufficient information was provided when the original disclosure
       was made to discover the status of the patent or patent
       application: (1) the publication of a previously unpublished
       patent application, (2) the abandonment of a patent application,
       or (3) the issuance of a patent on a previously disclosed patent
       application.
END

As far as the concern, the second part of the next sentence in 5.4.2(A) is worrisome:

If a
       patent has issued, then the new IPR disclosure must include the
       patent number and, if the claims of the granted patent differ
       from those of the application in manner material to the relevant
Contribution, the IPR disclosure must describe any differences in
       applicability to the Contribution.

The first part is fine, though it repeats what's in 5.4.1 already, so I think it can be dropped. But the second part is what I'm concerned about. We've never before required disclosures to determine and discuss the applicability of the disclosure to the Contribution, and nowhere else in this document is that mentioned. Indeed, we go to great lengths to say that the leadership of the IETF doesn't try to figure out applicability, and that even WGs or the IESG can only take into account their opinions of what the applicability is. As a general rule, I don't think we can ask people who disclose to do the analysis to determine what parts of the patent do or do not apply to a particular contribution. As we say elsewhere, that's really up to a court. So I think the above should just be dropped.

A few editorial ones suggested by some lawyer friends. They all seem eminently sensible to me:

- Section 5.5(A): s/i.e./e.g.

- Section 5.5(B): s/royalty rates/royalties. I'm told that there are royalties that might not have "rates" associated with them.

- Section 5.5(C): Two things:

OLD
      and will attach to the associated IPR
NEW
and will attach, to the extent permissible by law, to the associated IPR
END

I'm told that there are some jurisdictions where you may not be able to do that.

OLD
      must ensure that such
      commitments are binding on any subsequent transferee of the
      relevant IPR.
NEW
      must ensure that such commitments are binding on a transferee of
      the relevant IPR, and that such transferee will use reasonable
      efforts to ensure that such commitments are binding on a
      subsequent transferee of the relevant IPR, and so on.
END

The object of the "subsequent" wasn't clear, so this just spells it out. Wordy, but more precise.

- Section 7, paragraph 6:

The only change in this paragraph from 3979 was to add the word "all" in the second-to-last sentence. My lawyer friends tell me that this little change is opening a can of worms, having to do with licensing to makers of parts instead of implementers of the whole specification. I don't think we meant to change the meaning from the 3979 meaning, and I certainly don't think that we meant to change some implication about whether folks in general needed to license to people that make parts where they wouldn't have before. Was there something unclear about that sentence that needed the word "all" added to it? We aren't making a substantive change, are we? Can we just strike it? It seemed pretty clear to me before.

pr
--
Pete Resnick <http://www.qualcomm.com/~presnick/>
Qualcomm Technologies, Inc. - +1 (858)651-4478




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