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Brim 3 Internet-Draft Cisco Systems, Inc. 4 Expires: December 10, 2003 June 11, 2003 6 Guidelines for Working Groups on Intellectual Property Issues 7 draft-ietf-ipr-wg-guidelines-05 9 Status of this Memo 11 This document is an Internet-Draft and is in full conformance with 12 all provisions of Section 10 of RFC2026. 14 Internet-Drafts are working documents of the Internet Engineering 15 Task Force (IETF), its areas, and its working groups. Note that other 16 groups may also distribute working documents as Internet-Drafts. 18 Internet-Drafts are draft documents valid for a maximum of six months 19 and may be updated, replaced, or obsoleted by other documents at any 20 time. It is inappropriate to use Internet-Drafts as reference 21 material or to cite them other than as "work in progress." 23 The list of current Internet-Drafts can be accessed at http:// 24 www.ietf.org/ietf/1id-abstracts.txt. 26 The list of Internet-Draft Shadow Directories can be accessed at 27 http://www.ietf.org/shadow.html. 29 This Internet-Draft will expire on December 10, 2003. 31 Copyright Notice 33 Copyright (C) The Internet Society (2003). All Rights Reserved. 35 Abstract 37 This memo lays out a conceptual framework and rules of thumb useful 38 for working groups dealing with IPR (Intellectual Property Rights) 39 issues. It documents specific examples of how IPR issues have been 40 dealt with in the IETF. 42 Table of Contents 44 1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . 3 45 2. The Problem . . . . . . . . . . . . . . . . . . . . . . . . 3 46 3. The Approach . . . . . . . . . . . . . . . . . . . . . . . . 4 47 4. Case Studies . . . . . . . . . . . . . . . . . . . . . . . . 5 48 4.1 PPP CCP and ECP . . . . . . . . . . . . . . . . . . . . . . 5 49 4.2 IPS WG (IP Storage) . . . . . . . . . . . . . . . . . . . . 5 50 4.3 PEM and PKI issues . . . . . . . . . . . . . . . . . . . . . 6 51 4.4 VRRP (Virtual Router Redundancy Protocol) . . . . . . . . . 7 52 4.5 Secure Shell (SecSH) . . . . . . . . . . . . . . . . . . . . 7 53 4.6 IDN (Internationalized Domain Name) . . . . . . . . . . . . 7 54 5. General Principles . . . . . . . . . . . . . . . . . . . . . 9 55 5.1 Types of IPR . . . . . . . . . . . . . . . . . . . . . . . . 9 56 5.2 When to Think About IPR . . . . . . . . . . . . . . . . . . 9 57 5.3 IPR as a Technology Evaluation Factor . . . . . . . . . . . 10 58 5.4 Patents versus Pending Patents Applied For . . . . . . . . . 11 59 5.5 Applicability: It's Hard to Prove a Negative . . . . . . . . 11 60 5.6 Licensing Terms . . . . . . . . . . . . . . . . . . . . . . 12 61 5.7 Third-Party Disclosure of IPR Claims . . . . . . . . . . . . 14 62 5.7.1 Third-Party Disclosure Advice . . . . . . . . . . . . . . . 15 63 6. Security Considerations . . . . . . . . . . . . . . . . . . 15 64 7. Acknowledgments . . . . . . . . . . . . . . . . . . . . . . 16 65 Normative References . . . . . . . . . . . . . . . . . . . . 16 66 Informative References . . . . . . . . . . . . . . . . . . . 16 67 Author's Address . . . . . . . . . . . . . . . . . . . . . . 17 68 Intellectual Property and Copyright Statements . . . . . . . 18 70 1. Introduction 72 This memo lays out a conceptual framework and rules of thumb to 73 assist working groups dealing with IPR issues. The goal is to 74 achieve a balance between the needs of IPR claimants and the 75 implementers of IETF standards which is appropriate to current times. 76 As part of trying to distill out principles for dealing with IPR in 77 IETF working groups, it provides case studies of working group IPR 78 treatment. In other words, it documents the running code of the IETF 79 process. 81 This memo does not describe IPR procedures for document authors or 82 IPR claimants. Those are covered in two other memos, on submission 83 rights [5] and IPR in the IETF [6]. Rather, this memo is for working 84 groups that are trying to decide what to do about technology 85 contributions which have associated IPR claims. 87 2. The Problem 89 Traditionally the IETF has tried to avoid technologies which were 90 "protected" through IPR claims. However, compromises have been made 91 since before the IETF was born. The "common knowledge" of the IETF, 92 that IPR-impacted technology was anathema, has never recognized that 93 the Internet has run on IPR-impacted technologies from the beginning. 94 Nowadays the majority of the useful technologies brought to the IETF 95 have some sort of IPR claim associated with them. 97 It will always be better for the Internet to develop standards based 98 on technology which can be used without concern about selective or 99 costly licensing. However, increasingly, choosing a technology which 100 is not impacted by IPR over an alternative that is may produce a 101 weaker Internet. Sometimes there simply isn't any technology in an 102 area that is not IPR-impacted. It is not always the wrong decision 103 to select IPR-impacted technology, if the choice is made knowingly, 104 after considering the alternatives and taking the IPR issues into 105 account. 107 The IETF is not a membership organization. Other standards-making 108 bodies may have membership agreements that member organizations must 109 sign and adhere to in order to participate. Membership agreements 110 may include strict procedures for dealing with IPR, or perhaps a 111 requirement that technology must be licensed royalty-free. This is 112 currently not possible in the IETF. 114 Even if the IETF had membership agreements, they would be difficult 115 to formulate in a way that covered IPR issues, because the IETF's 116 work includes technology from other sources and because the IETF 117 collaborates with organizations that work with different approaches 118 to intellectual property. The IETF can encounter four different IPR 119 situations, at almost any time during the life of a document: 121 o A document submitter notes their (or their represented 122 organization's) IPR claim regarding the contents of the document. 124 o A non-submitter IETF participant claims that the contents of a 125 document are covered by their (or their represented 126 organization's) own IPR. 128 o An IETF participant notes IPR that is claimed by an individual or 129 organization with which neither an author of the document, nor the 130 participant noting the IPR, have an affiliation. 132 o An individual or organization that does not participate in the 133 IETF, but that monitors its activities, discovers that a document 134 intersects that individual's or organization's established or 135 pending intellectual property claims. It may come forward right 136 away, or wait and let the IETF work progress. 138 In working group activities, the IETF does not have detailed rules 139 for each situation. Working groups have essentially only one rule 140 they can invoke -- about individuals not participating in activities 141 related to a technology if they do not disclose known IPR. Beyond 142 that a working group can only make recommendations and requests. 144 Since every case is unique, and there are close to no general rules, 145 working groups need a great deal of freedom in dealing with IPR 146 issues. However, some amount of consistency is important so that 147 both contributors and users of eventual standards can know what to 148 expect. 150 3. The Approach 152 The goal of this memo is not to make rules. The goal is to give 153 working groups as much information as possible to make informed 154 decisions, and then step out of the way. The other IPR working group 155 memos [5][6] lay out what needs to be done once a particular piece of 156 technology is selected as a working group draft. However, this 157 doesn't help when a working group is trying to decide whether or not 158 to select a technology in the first place. This third memo is written 159 to help in making that decision. We want to build a conceptual 160 framework, a new set of "common knowledge", to make it easier for 161 working groups to deal with intellectual property issues. 163 To do so, we first present "case studies" in Section 4 -- real events 164 that have happened in recent years, and how different working groups 165 dealt with them -- plus notes on possible lessons to be learned. In 166 Section 5, we expand on these lessons and try to extract general 167 principles. 169 4. Case Studies 171 The best way to know what works in dealing with IPR is to look at 172 past attempts to do so. The following are selected as cases from 173 which general lessons might be extracted. Other lessons might be 174 extracted from other cases, but the cases below cover the important 175 ones. 177 4.1 PPP CCP and ECP 179 The PPP Working Group adopted technology for PPP's Connection Control 180 Protocol and Encryption Control Protocol about which an IPR 181 disclosure had been received. They indicated to the IESG that they 182 believed the patented technology was the best approach, and was 183 better than no standards at all. 185 At that time, under the policies documented in RFC 1602 [1] (the 186 precursor to RFC 2026), progress on any standard was to stop at the 187 Proposed Standard phase until specific assurances about licensing 188 terms could be obtained from all IPR claimants. However, as 189 described in RFC 1915 [3], in the case of PPP ECP and CCP, the IPR 190 claimant balked at the requirement for specific assurances. 192 In the end, with support from the working group, the variance 193 procedure described in RFC 1871 [2] was followed to grant an 194 exception to the RFC 1602 requirements. If it had not been granted, 195 the ECP and CCP standards could have been blocked permanently. 197 Lessons: 199 o IPR claimants, even when their intentions are good, may strongly 200 resist being forced to make specific public statements about 201 licensing terms. If explicit statements of licensing terms are 202 required, then the publicly stated terms will probably be 203 "worst-case", which would provide little useful information. 205 4.2 IPS WG (IP Storage) 207 The IPS (IP Storage) Working Group evaluated technology developed 208 outside of the working group, "secure remote password" (SRP, RFC 2945 209 [7]). At the time, there was one known IPR claim, and the proposed 210 licensing terms were apparently reasonable. SRP had become a 211 proposed standard without going through any working group, so IETF 212 participants may have been less likely to notice it in order to make 213 statements about IPR. In any case, two more possible IPR claims were 214 uncovered after the IPS working group had already decided to make SRP 215 required. One of the possible IPR claimants did not make a strong 216 IPR claim itself, and did not want to take the time to determine 217 whether it actually had a claim, though it acknowledged it might have 218 a claim. In both cases it was difficult to obtain concrete 219 information on possible licensing terms, even though words like 220 "reasonable" and "non-discriminatory" were used in the IPR 221 statements. Rumors of what they might be like did not sound good. 222 The working group participants took the claims, potential and 223 otherwise, very seriously, and decided not to use SRP after all, even 224 though they had already chosen it based on other criteria. 226 Lessons: 228 o IPR claims may appear at any time in the standards process. 230 o Take impreciseness seriously. Attempt to get clarification on 231 both IPR claims and licensing terms. 233 4.3 PEM and PKI issues 235 The PEM (Privacy-Enhanced Mail) Working Group wanted to use public 236 key technology. In the mid-90s, the basic principles of public key 237 infrastructure had been patented for years. The patent holder had 238 shown a tendency to actively enforce its rights, and to prefer 239 software sales to licensing. This was seen as a significant 240 potential issue, one which could possibly interfere with the easy 241 deployment of Internet technology. However, there was no alternative 242 technology that came close to its capabilities. Adopting an 243 alternative would have damaged the standard's usefulness even more 244 than adopting a technology with IPR claims. The case was so 245 compelling that the working group participants decided to move 246 forward on standardizing it and even requiring it. 248 One factor which was noted was that the patents were mature, and 249 would expire within a few years. That meant that although the patents 250 might be significant to start with, they would not be in the long 251 run. This lowered the perceived risk of using the IPR-impacted 252 technology. 254 Lessons: 256 o IPR is just one issue in deciding whether to adopt a technology. 258 o IPR is not an all-or-nothing issue. There are different types and 259 levels of IPR protection. 261 o The IPR's lifecycle phase can be a consideration. 263 4.4 VRRP (Virtual Router Redundancy Protocol) 265 The working group was standardizing VRRP based on a protocol 266 developed outside the IETF. The IPR claimant supported that protocol 267 and stated that it would license its IPR for that protocol if it 268 became the standard, but not for the similar protocol the working 269 group was developing. The working group participants decided to go 270 ahead and standardize the protocol developed in the working group 271 anyway. The IPR claimant has only claimed its patent when someone 272 else claimed a patent against it. There is no evidence that the 273 working group participants actually thought about the implications of 274 the IPR claim when they went ahead with their choice of protocol. 276 Lessons: 278 o IPR claims should never be disregarded without good cause. Due 279 diligence should be done to understand the consequences of each 280 claim. 282 4.5 Secure Shell (SecSH) 284 This is primarily an unfinished trademark issue, not a patent issue, 285 since the patent issue has been worked out outside of the IETF. The 286 holder of a trademark wants the IETF to stop using "SSH" in the names 287 and bodies of its proposed standards. The working group participants 288 have thought through the details of the claims, and possible 289 implications and risks, and decided to go ahead and continue using 290 the names as they are now. 292 Lessons: 294 o Working group participants can evaluate IPR claims not only for 295 their possible validity, but also for the risk of misjudging that 296 validity. The impact of honoring the IPR claim may be major or 297 minor. 299 4.6 IDN (Internationalized Domain Name) 301 The IDN Working Group dealt with a number of IPR claims. Several were 302 made which did not overlap with the technology -- the IPR claimants 303 said the patents were being announced just in case the working group 304 decided to go that way. In one case, even though a patent was 305 announced as purely defensive, many working group participants 306 investigated the claims themselves. They concluded that it did not 307 overlap. 309 In one case, an IPR claimant asserted that the working group's 310 documents, and in fact the IETF as a whole, were infringing on its 311 rights. Individual working group participants consulted with their 312 legal advisers, concluded that the claims would not overlap the 313 working group's developing technology, and decided that they need not 314 be concerned about the claims. This was reflected in the direction 315 the group as a whole decided to take. 317 In another case, patent claims were asserted that appeared to be 318 derived from working group discussion, rather than vice versa (or 319 independent discovery). The claimants were known to be following the 320 working group's work when the ideas were proposed, and their patent 321 filing was considerably subsequent to that time. 323 In 2000 the IDN Working Group discovered a patent that some 324 participants thought might apply to one of their main drafts. If it 325 did, it could affect their work profoundly -- to the extent that some 326 suggested that if they could not work out reasonable licensing terms 327 with the IPR claimant they might just disband. As a group and 328 individually, participants corresponded with the IPR claimant in 329 order to get an explicit statement of licensing terms, preferably 330 royalty-free. By doing so they gained a better understanding of just 331 which working group activities were seen as infringing on the patent, 332 and at least some understanding of the IPR claimant's intentions and 333 philosophy. Since the patent holder seemed to have an interest in 334 using the patent for profit, the group discussed the issues on its 335 mailing list. They overtly talked about how they could change their 336 proposed technology to avoid having to contest the patent, and the 337 extent to which the patent might be countered by claims of prior art. 338 Meanwhile, individually they were talking to their legal advisors. 339 Gradually, a collective opinion formed that the working group 340 documents did not infringe on the patent. Since then, the patent has 341 been ignored. However, they are keeping a watchful eye out for 342 continuation patents which might have already been submitted. 344 Lessons: 346 o It's sometimes beneficial to push IPR claimants to find out what 347 they think their claims cover and what their licensing terms are. 349 o Possibilities of prior art should be considered. 351 o It's all right, and sometimes beneficial, to discuss IPR claims 352 and gather information about possible prior art on the group list. 353 The results of such discussion can be considered when deciding 354 whether to develop a technology (but remember that neither the 355 IETF nor any working group takes a stand on such claims as a body, 356 and the group is not the best place to get legal advice). 358 5. General Principles 360 Given the case studies above, there are a few principles that working 361 groups can start with in dealing with IPR. Every working group needs 362 to develop and follow its own consensus, and actual treatments will 363 vary as much as they have in the past. However, every working group 364 also needs to take IPR seriously, and consider the needs of the 365 Internet community and the public at large, including possible future 366 implementers and users who will not have participated in the working 367 group process when the standardization is taking place. 369 5.1 Types of IPR 371 A primer on the different types of IPR would be large, unreliable, 372 and redundant with other Working Group documents [4][5][6]. For 373 informal exploration, see those documents and other relevant sources 374 on the web. Readers with more serious concerns should consult their 375 legal advisors. In the United States, briefly: 377 o Trademarks indicate the sources of goods. Service marks indicate 378 the sources of services. They protect the use of particular marks 379 or similar marks. 381 o Copyrights protect the expressions of ideas (not the ideas 382 themselves), in almost any form, and allow "fair use". Copyrights 383 expire but they can be renewed. 385 o Patents protect "inventions". They expire (utility patents expire 386 after 20 years), but follow-on patents can cover similar 387 technologies and can have nearly the same implications for use in 388 the Internet as the original patents. 390 5.2 When to Think About IPR 392 This memo does not describe IPR procedures for document authors or 393 IPR claimants. Rather, this memo is for working group participants 394 who are trying to decide what to do about IPR claims related to their 395 work. A working group as a whole needs to think about IPR issues: 397 o when examining a technology, and deciding whether to initiate work 398 on it. 400 o when deciding whether to adopt a draft as a working group 401 document. 403 o when choosing between two or more working group drafts that use 404 different technologies. 406 o when deciding whether to depend on a technology developed outside 407 the working group. 409 o when comparing different kinds of IPR protection. 411 At each of these times, the working group is strongly encouraged to 412 solicit disclosure of IPR claims and licensing terms. A working 413 group's job will be a lot easier if IPR details are discovered early, 414 but it should realize that IPR claims may appear at any time. 415 Working groups should anticipate that an IPR claimant might choose 416 not to participate in the IETF, but instead to monitor from a 417 distance while the relevant technology is being discussed and 418 evaluated. A working group's knowledge of IPR claims may therefore 419 depend upon when a claimant steps forward during the course of a 420 working group's deliberations. 422 5.3 IPR as a Technology Evaluation Factor 424 How do you weigh IPR claims against other issues when deciding 425 whether to adopt a technology? 427 The ultimate goal of the IETF is to promote the overall health, 428 robustness, flexibility, and utility of the Internet infrastructure. 429 We base architectural decisions on our long-term extrapolations of 430 requirements by thinking in these terms. When considering a 431 particular technology, we compare it with other technologies not just 432 for its elegance of design in and of itself, but also for how it fits 433 in the bigger picture. This is done at multiple levels. It is 434 examined for how it fits into the overall design of the working 435 group's output, how it fits into the particular Internet 436 infrastructure area, how it fits with work going on in other areas, 437 and how it fits in the long view of the Internet architecture. 439 Similarly, when evaluating a technology, working group participants 440 consider IPR claims on it (including possible copyright issues with 441 text describing it). The issue is not whether a particular piece of 442 technology is IPR-impacted -- we use IPR-impacted technology every 443 minute. The question is how much the IPR protection will limit the 444 technology's usefulness in building a robust, highly useful Internet. 445 Thus, the only significant questions are: is the IPR claim relevant, 446 and what are the terms under which the technology can be used? When 447 technology is free from IPR protection the answer is easy. When it 448 is IPR-impacted, some licensing terms make the IPR issues 449 insignificant compared to the engineering issues. Other terms can 450 make a technology unusable even if it is perfect otherwise. 452 The problem with IPR as a technology evaluation factor is that it is 453 unlikely that a working group, as an entity, can ever claim to have 454 reached consensus on most IPR issues. The IETF as a whole, and a 455 working group as a whole, takes no stance on the validity of any IPR 456 claim. It would be inappropriate for a working group chair to 457 declare that consensus had been reached that, for example, a 458 company's patent was invalid. Individual participants will need to 459 use whatever legal advice resources they have access to in order to 460 form their own individual opinions. Discussions about the validity 461 of IPR may take place under the auspices of the working group, in 462 particular about relative risks of technology choices. Individual 463 participants may take these discussions into account. The working 464 group as a body may not take a stance on validity, but it may make 465 choices based on perceived risk. 467 5.4 Patents versus Pending Patents Applied For 469 The IETF does not (cannot) expect IPR claimants to tell a working 470 group specifically how they think a particular patent applies. If a 471 patent has already been granted, the IETF can reasonably expect 472 disclosure of the patent number and possibly the relevant IETF 473 document sections, which will allow working group participants to 474 explore details of the claims. If a patent has not yet been granted 475 (or if knowledge of the patent is restricted, e.g. for security 476 reasons), significantly less information is available. In most 477 countries patent applications are published 18 months after they are 478 filed, but in the USA that can be avoided if the applicant does not 479 also file outside the USA. In some countries applications are a 480 matter of public record, but details of pending claims can be 481 modified at any time by the claim submitter before the patent is 482 granted. It is not known before then what rights will actually be 483 granted. Finally, rights can be contested in court, and nothing is 484 final until the courts decide -- perhaps not even then. All the IETF 485 can expect regarding a pending patent is disclosure that it exists, 486 the related IETF documents, and possibly the relevant IETF document 487 sections and some statement about licensing terms. 489 5.5 Applicability: It's Hard to Prove a Negative 491 Working group participants must make their own decisions about what 492 level of confidence they need as to whether IPR is applicable. 493 However, perfect knowledge is not a worthwhile goal. 495 In general, a working group should strive to find out about all IPR 496 claims related to technologies it is considering, and at least the 497 general facts about licensing terms for each case -- for example 498 whether the terms will be royalty-free, or perhaps "reasonable and 499 non-discriminatory". Working group participants should also 500 investigate possibilities of prior art which would counter the IPR 501 claims. However, even if the working group participants do 502 exhaustive searches, both externally and internally to their 503 employers, it is impossible to prove that a particular technology is 504 not covered by a particular IPR claim, let alone prove that it is not 505 covered by any IPR claim. Anything a working group adopts may, in 506 the future, turn out to be IPR-impacted, although the IPR claim may 507 not be discovered until years later. Claims are open to 508 interpretation even after rights are granted. Drafts can be very 509 fluid, even up to the time of last call, and IPR issues may 510 unknowingly be taken on at any time. Absolute certainty about IPR 511 claims is rare. 513 However, the level of confidence needed to consider IPR when 514 evaluating a technology is often not hard to get to. There are cases 515 where risk is high (e.g. where licensing terms may be onerous) and 516 thus a high level of confidence about applicability is needed, but 517 history shows that most of the time "rough" confidence is good 518 enough. 520 In all cases, licensing terms are a more significant consideration 521 than the validity of the IPR claims. Licensing terms often do not 522 limit the usefulness of the technology. It is difficult to be sure 523 about the validity of IPR claims. If the licensing terms can be 524 determined to be reasonable, then the IPR claims become much less 525 important. 527 5.6 Licensing Terms 529 Licensing terms vary across a range from no license required at all 530 to prohibitive. In general, working groups show a preference for 531 technologies with IPR considerations in approximately the following 532 order. This list does not constitute a rule, and every working group 533 needs to take its own circumstances into account. 535 o License not required. 537 o IPR licensed with no restrictions. 539 o IPR licensed with no material restrictions, e.g. no trademark 540 license required. 542 o IPR licensed for a particular field of use but with no other 543 material restrictions, e.g. licensed solely for implementations 544 complying with a standard. 546 o IPR licensed under royalty-free terms and reasonable and 547 non-discriminatory restrictions. 549 o IPR licensed under reasonable and non-discriminatory restrictions. 550 This may include payment of a royalty. 552 o IPR which is otherwise licensable. 554 o IPR which is not licensable, i.e. which is only available as an 555 implementation. 557 o IPR which is not available under any conditions. 559 Many IPR claimants do not like to publish specific terms under which 560 they will issue licenses. They may use standard terms for many 561 licensees, but they prefer to negotiate terms for some. Therefore, 562 do not expect any IPR disclosure statement to lay out detailed 563 blanket terms for licensing. 565 If an IPR disclosure statement lists only vague terms, that doesn't 566 mean the terms that will be offered in individual licenses will be 567 any worse than those offered if an IPR disclosure makes very specific 568 statements. Obviously, if an IPR claimant refuses to suggest any 569 terms at all, the working group is going to have trouble evaluating 570 the future utility of the technology. 572 There is a class of restriction which involves "reciprocity", in 573 which intellectual property may be licensed if the licensee is 574 willing to license its intellectual property in return. The 575 specificity of such agreements can vary, and the same or similar 576 terms may be required. Another potential licensing restriction is 577 defensive suspension, where a licensor may revoke or suspend the 578 license if the licensee asserts a patent claim against the licensor. 579 For interpretation of any particular reciprocity or related issue, 580 consult your legal adviser. 582 Words such as "reasonable", "fair", and "non-discriminatory" have no 583 objective legal or financial definition. The actual licensing terms 584 can vary tremendously. Also, IPR claimants have occasionally 585 asserted that there were already sufficient licenses for a particular 586 technology to meet "reasonable" multisource and competitiveness 587 requirements and, hence, that refusing to grant any licenses to new 588 applicants was both fair and non-discriminatory. The best way to 589 find out what an IPR claimant really means by those terms is to ask, 590 explicitly. It also helps to gather knowledge about licenses actually 591 issued, for that technology or for others, and about other 592 experiences with the IPR claimant. 594 Despite the fact that IPR claimants often don't like to publish 595 explicit terms, there are levels of vagueness, and individuals and 596 even working groups can sometimes successfully push an IPR claimant 597 toward less vagueness. Many employers of IETF participants know that 598 the IETF prefers explicit terms, and do feel pressure to produce 599 them. 601 If working group participants are dissatisfied with the confidence 602 level they can obtain directly about licensing terms for a particular 603 technology, they can possibly extrapolate from history. In order for 604 licensed technology to become a draft standard, at least two 605 independent licenses need to have been issued. If the IPR claimant 606 for the technology the working group is considering has licensed 607 other technology in the past, there is a record of the sorts of terms 608 they are willing to grant, at least in those specific cases. This 609 sort of thing is weak but everything counts, and it may be of some 610 help. 612 In many jurisdictions that issue patents, inventors are required to 613 file patent applications within 12 months of public disclosure or use 614 of a novel method or process. Since many of these jurisdictions also 615 provide for publication of pending patent applications 18 months 616 after a patent application is filed, the ability to determine whether 617 or not claims have been made at all relating to a particular 618 technology increases 30 months (12 + 18) after the public disclosure 619 or use of that technology. 621 5.7 Third-Party Disclosure of IPR Claims 623 It is good to notify the IETF of relevant IPR claims even when they 624 are not one's own, and [6] says to do so "as soon as possible". 625 However, anyone considering such a disclosure should do some 626 preliminary exploration with the affected working group(s) beforehand 627 (see Section 5.7.1). Third-party disclosure is a potential denial of 628 service threat to the working group, and therefore it is good form to 629 proceed slowly at first. 631 Working group participants should be aware that third-party 632 disclosure can be used, knowingly or unknowingly, to defocus and 633 distract the working group and hinder its progress. They should 634 evaluate third-party disclosures accordingly. Working group chairs 635 should be willing and able to discipline those they think are using 636 the third-party disclosure system inappropriately. Those who think 637 they are being unfairly blocked may take the matter up with the Area 638 Directors and/or the IESG. 640 All of the criteria for evaluating IPR claims discussed in the 641 sections above apply in the case of third-party disclosures as well, 642 to the extent they can be practiced. 644 5.7.1 Third-Party Disclosure Advice 646 This subsection provides advice to those considering making 647 third-party disclosures. While not required, the actions described 648 here are encouraged to aid working groups in dealing with the 649 possible implications of third-party disclosures. In evaluating what 650 (if anything) to do in response to a third-party disclosure, a 651 working group may consider the extent to which the discloser has 652 followed this advice (for example, in considering whether a 653 disclosure is intended primarily to defocus and distract the working 654 group). 656 In general a potential discloser should exchange mail with the 657 working group chair(s) first, to open the way for discussion. Also, 658 if the potential discloser is not sure if the IPR claim applies, this 659 is the time to reach some kind of agreement with the working group 660 chair(s) before saying anything publicly. After discussion with the 661 working group chair(s), the potential discloser should bring the 662 issue to the attention of the working group, and to the attention of 663 the IPR claimant if doing so is not too difficult. Such discussion 664 should help the potential discloser to become more sure, one way or 665 the other. If the potential discloser is sure the discovered IPR 666 claim applies, and the IPR claimant does not submit a first-party 667 disclosure itself, then the potential discloser is encouraged to 668 submit a third-party disclosure. 670 Intellectual property often applies to more than one working group. 671 A person thinking of making a third-party disclosure should consider 672 what other working groups might be affected, and communicate with 673 them in the same manner. 675 Don't bring up IPR issues that are unrelated to the areas where the 676 working group is focusing at that time. Don't bring IPR claims to 677 the working group's attention just in case they might be relevant in 678 a few months, but only if they have implications for current work. 679 Messages to the working group list should be substantive, and a 680 single message should focus on a specific issue. They can reference 681 multiple claims or patents related to that issue. 683 6. Security Considerations 685 This memo relates to IETF process, not any particular technology. 686 There are security considerations when adopting any technology, 687 whether IPR claims are asserted against it or not. A working group 688 should take those security considerations into account as one part of 689 evaluating the technology, just as IPR is one part, but they are not 690 issues of security with IPR procedures. 692 7. Acknowledgments 694 The author would like to acknowledge the help of the IETF IPR Working 695 Group. The author would also like to thank the following for their 696 extensive comments and suggestions: Robert Barr, David Black, Scott 697 Bradner, Jorge Contreras, Paul Gleichauf, Keith Moore, Russell 698 Nelson, Jon Peterson, Randy Presuhn, Pekka Savola, Valerie See, Bob 699 Wyman, and Joe Zebarth. 701 Normative References 703 [1] Huitema, C. and P. Gross, "The Internet Standards Process -- 704 Revision 2", RFC 1602, March 1994. 706 [2] Postel, J., "Addendum to RFC 1602 -- Variance Procedure", BCP 2, 707 RFC 1871, November 1995. 709 [3] Kastenholz, F., "Variance for The PPP Connection Control 710 Protocol and The PPP Encryption Control Protocol", BCP 3, RFC 711 1915, February 1996. 713 [4] Bradner, S., "The Internet Standards Process -- Revision 3", BCP 714 9, RFC 2026, October 1996. 716 [5] Bradner, S., "IETF Rights in Contributions", 717 draft-ietf-ipr-submission-rights-05 (work in progress), June 718 2003. 720 [6] Bradner, S., "Intellectual Property Rights in IETF Technology", 721 draft-ietf-ipr-technology-rights-08 (work in progress), June 722 2003. 724 Informative References 726 [7] Wu, T., "The SRP Authentication and Key Exchange System", RFC 727 2945, September 2000. 729 Author's Address 731 Scott Brim 732 Cisco Systems, Inc. 733 146 Honness Lane 734 Ithaca, NY 14850 735 USA 737 EMail: sbrim@cisco.com 739 Intellectual Property Statement 741 The IETF takes no position regarding the validity or scope of any 742 intellectual property or other rights that might be claimed to 743 pertain to the implementation or use of the technology described in 744 this document or the extent to which any license under such rights 745 might or might not be available; neither does it represent that it 746 has made any effort to identify any such rights. Information on the 747 IETF's procedures with respect to rights in standards-track and 748 standards-related documentation can be found in BCP-11. Copies of 749 claims of rights made available for publication and any assurances of 750 licenses to be made available, or the result of an attempt made to 751 obtain a general license or permission for the use of such 752 proprietary rights by implementors or users of this specification can 753 be obtained from the IETF Secretariat. 755 The IETF invites any interested party to bring to its attention any 756 copyrights, patents or patent applications, or other proprietary 757 rights which may cover technology that may be required to practice 758 this standard. Please address the information to the IETF Executive 759 Director. 761 Full Copyright Statement 763 Copyright (C) The Internet Society (2003). All Rights Reserved. 765 This document and translations of it may be copied and furnished to 766 others, and derivative works that comment on or otherwise explain it 767 or assist in its implementation may be prepared, copied, published 768 and distributed, in whole or in part, without restriction of any 769 kind, provided that the above copyright notice and this paragraph are 770 included on all such copies and derivative works. However, this 771 document itself may not be modified in any way, such as by removing 772 the copyright notice or references to the Internet Society or other 773 Internet organizations, except as needed for the purpose of 774 developing Internet standards in which case the procedures for 775 copyrights defined in the Internet Standards process must be 776 followed, or as required to translate it into languages other than 777 English. 779 The limited permissions granted above are perpetual and will not be 780 revoked by the Internet Society or its successors or assignees. 782 This document and the information contained herein is provided on an 783 "AS IS" basis and THE INTERNET SOCIETY AND THE INTERNET ENGINEERING 784 TASK FORCE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING 785 BUT NOT LIMITED TO ANY WARRANTY THAT THE USE OF THE INFORMATION 786 HEREIN WILL NOT INFRINGE ANY RIGHTS OR ANY IMPLIED WARRANTIES OF 787 MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 789 Acknowledgment 791 Funding for the RFC Editor function is currently provided by the 792 Internet Society.