Re: [Idr] IPR related to the flow-spec I-D

[Thomas Narten <narten at us.ibm.com>]

Yakov Rekhter <yakov at juniper.net> writes:

> I'd like to explain a bit of the confusion surrounding the IPR
> disclosure issue. On 12/23/2008 Juniper disclosed IPR on the flow-spec
> draft (https://datatracker.ietf.org/ipr/1052/), but it contained
> an incorrect "terms" section.

Actually, I believe there is slightly more to it than this. IIRC, the
December disclosure only listed a single patent application. The
revised one lists one patent (issued) plus 5 patent applications (no
information available AFAICT). So the disclosure has been expanded to
include significantly (?) more possible IPR compared with the original
disclosure.

Correct?

That said, the revised terms are IMO an improvement. Thanks.

> The disclosure was removed at Juniper's request and resubmitted on
> 02/09/2009 with the proper "terms" section. Unfortunately, Juniper's
> legal team released a number of IPR disclosures on or about
> 12/23/2008 and had to remove and correct all of them so, the sudden
> flurry of activity may have been worrying to some. You may have seen
> many corrected IPR disclosures on the IETF's IPR webpage
> (https://datatracker.ietf.org/ipr/about/) and more are to
> come. Juniper intended no harm or malice by these actions and
> Juniper is working to make certain that disclosures are made in a
> more timely manner.

Regardng timing. The flow-spec document lists 6 authors, four of them
with Juniper affiliations.

The flow spec document was originally submitted as
draft-marques-idr-flow-spec-00.txt back in June, 2003. Two of the
authors on that document listed Juniper affiliations at that time.

It seems surprising that the IPR that Juniper has just disclosed was
only "recently" filed. If so, it is likely that there is significant
prior art (since the document has been published and under discussion
for so long). On the other hand, if the IPR was filed quite some time
ago (i.e., when the work started), it raises the question of whether
one of the IETF's most basic IPR obligations as described in RFC 3979
has been followed:

   6.1.1.  A Contributor's IPR in his or her Contribution

   Any Contributor who reasonably and personally knows of IPR meeting
   the conditions of Section 6.6 which the Contributor believes Covers
   or may ultimately Cover his or her Contribution, or which the
   Contributor reasonably and personally knows his or her employer or
   sponsor may assert against Implementing Technologies based on such
   Contribution, must make a disclosure in accordance with this Section
   6.

...

   6.2.1.  Timing of Disclosure Under Section 6.1.1

   The IPR disclosure required pursuant to section 6.1.1 must be made as
   soon as reasonably possible after the Contribution is published in an
   Internet Draft unless the required disclosure is already on file.

...    

   If a Contributor first learns of IPR in its Contribution that meets
   the conditions of Section 6.6, for example a new patent application
   or the discovery of a relevant patent in a patent portfolio, after
   the Contribution is published in an Internet-Draft, a disclosure must
   be made as soon as reasonably possible after the IPR becomes
   reasonably and personally known to the Contributor.

Can the Contributers to this document please clarify the history and
their role in it better w.r.t the IPR disclosures? I'm particularly
concerned about the timing of the filing of the IPR and its subsequent
disclosure. It seems rather odd that an ID that has been under
discussion within the IETF for some 5 1/2 years would be subject of an
IPR disclosure at such a late date (only after IETF LC starts) in the
process.

For example, do any of the patent applications list any of the
document authors as inventors (and if so when was the application
filed)? Or is this a case where the IETF contributers weren't involved
in the patent application and wouldn't "reasonably" have been expected
to known about it, i.e., as covered by the following in 3979:

   l. "Reasonably and personally known": means something an individual
      knows personally or, because of the job the individual holds,
      would reasonably be expected to know.  This wording is used to
      indicate that an organization cannot purposely keep an individual
      in the dark about patents or patent applications just to avoid the
      disclosure requirement.  But this requirement should not be
      interpreted as requiring the IETF Contributor or participant (or
      his or her represented organization, if any) to perform a patent
      search to find applicable IPR.

It would be most helpful if all the contributers associated with the
patent applications clarified their role to the WG, as was recently
done in the case of draft-ietf-tcpm-tcp-auth-opt-03 in the TCPM
WG. TCPM is also grappling with a disclosure made late in the process
and the patent author in that case graciously published the patent
application to help the WG in its deliberations on how to proceed.

Thomas