Re: [Idr] WG Last Call on draft-ietf-idr-flow-spec-05.txt

[John Leslie <john at jlc.net>]

   IANAL, but

John G. Scudder <jgs at juniper.net> wrote:
> 
> I don't see how the license you quoted is very different from the one  
> published with the recent (corrected) IPR disclosure 
> (http://www.ietf.org/ietf/IPR/juniper-ipr-draft-ietf-idr-flow-spec-03.txt ):
> 
> "If this standard is adopted, Juniper will not assert any patents  
> owned or controlled by Juniper against any party for making, using,  
> selling, importing or offering for sale a product that implements the  
> standard, provided, however that Juniper retains the right to assert  
> its patents (including the right to claim past royalties) against any  
> party that asserts a patent it owns or controls (either directly or  
> indirectly) against Juniper or any of Juniper's affiliates or  
> successors in title or against any products of Juniper or any products  
> of any of Juniper's affiliates either alone or in combination with  
> other products; and Juniper retains the right to assert its patents  
> against any product or portion thereof that is not necessary for  
> compliance with the standard."
> 
> There are some differences between this and the license you quote, and  
> I'm not a lawyer so prefer to avoid a detailed analysis of those  
> differences, but to a first approximation the above paragraph is the  
> same as what you mention: a royality-free licence containing  
> protection against patent litigation.

   I see nothing in there that looks like a license: it is rather a
promise not to sue under certain conditions.

   While the Google version clearly grants a license, albeit revokable:
" 
" Subject to the terms and conditions of this License, Google hereby  
" grants to You a perpetual, worldwide, non-exclusive, no-charge,
" royalty-free, irrevocable (except as stated in this License) patent   
" license for patents necessarily infringed by implementation (in whole or
" in part) of this specification. If You institute patent litigation
" against any entity (including a cross-claim or counterclaim in a
" lawsuit) alleging that the implementation of the specification
" constitutes direct or contributory patent infringement, then any patent
" licenses for the specification granted to You under this License shall
" terminate as of the date such litigation is filed.

   The differences are rather substantial:

- Google will not seek royalties predating the date of filing;

- Google grants the license whether or not a standard is adopted;

- Google revokes only for a suit over _this_ specification;

- Google doesn't reserve "not necessary for compliance".

   IMHO, while Juniper's current language may or may not be the best
we can hope for, it simply isn't a royalty-free license.

   While I dislike playing lawyer games, I'm afraid we ignore these
differences at significant peril.

   It's not that I expect Juniper managment to become unreasonable:
I don't expect them to file litigation over this. It's what happens
when companies enter bankruptcy: a whole new set of lawyers take
over, interested _only_ in maximizing the value against which they
can charge for what lawyers do -- and not the least bit interested
in carrying on the original vision of the company's founders.

   In today's times, any company faces increased risk of bankruptcy.
And it doesn't need to be Jupiter: any two-bit company can start
the meltdown by filing patent-infringement litigation. Any other
company can contribute to the meltdown by exercising the rights
reserved in IPR claims like Jupiter's.

   So, while I'm not exactly _happy_ living in a world of Google
IPR filings, I'm a whole lot happier with that than a world of
Jupiter IPR filings.

   Bottom line: I'd like to give Jupiter more time to think it over,
and not progress flow-spec to standard right yet.

--
John Leslie <john at jlc.net>