Subject: Re: Proposal to create IETF IPR Advisory Board

From: [email-masked] (Noel Chiappa)
Date: Tue, 17 Feb 2009 20:21:59 -0500 (EST)

> From: "Steven M. Bellovin" <[email-masked]>

    > But I'm not even certain of the value of the answer -- certainly, the
    > large corporations are not going to take this advisory board's word for
    > it; they'll do their own analysis

Sure, but as I pointed out to Tom Narten here:

  http://www.ietf.org/mail-archive/web/ietf/current/msg55745.html

those IETFers not associated with a large company might find the analysis
produced by such a board useful.

It might also be useful to us generally, in deciding how serious an
encumbrance a patent, or application, might be - because that's an essential
element in the bottom line question for the IETF about such encumbrances,
which is 'do the benefits of the protocol outweigh the costs of the
encumbrance'. And, as I pointed out in that message, we certainly could
use some expert advice in making those decisions.

Hey, it's just _advice_ they would be generating - people here would be free
to take it, or ignore it.

    > Then, of course, there's the whole question of liability. Can the IETF
    > and/or ISOC afford the liability insurance for such a board?

Well, would it need to? I assume the lawyers on the board could craft
adequate language limiting the expectations people should apply to any
analysis (i.e. telling people that this advice is worth what people are
paying for it - nothing :-), etc.

But this is one more question any I-D proposing such an advisory board would
have to answer.

    > doing such an analysis is difficult and time-consuming.
    > ...
    > Finally, where are we going to get the people? ...
    > willing to spend (presumably uncompensated) time doing this?

Absolutely - and that's one question any such proposal would have to address.

    > Could we get enough competent people who know enough about enough
    > different protocols *and* about patent law

I don't think you'd expect to get that in one person. The board would have to
have a mix of legal people and technical people, who work together - just as
in real patent cases, you always have a mixture of attorneys and experts
(some of whom will be expert witnesses) on the team.

    > This is why we need a draft -- until we have one, we won't know if it's
    > a plausible, useful idea or not. In fact, a metadraft -- one that
    > simply set out the questions that a concrete proposal should address --
    > would be a worthwhile contribution in its own regard.

Indeed - although it could usefully include quick, rough, draft first-pass
answers to the questions John posed:

    >> what such a board's charter is
    >> how its members are selected and what their qualifications would be
    >> where its operations fit into the IETF process
    >> what the appeal process will be for people unhappy with its conclusions
    >> what if any budget it would need
    >> all the other details needed to create and run it

which actually are a really good list of question that need to be answered. (My
concern about his message was more 'would such a thing get a serious hearing',
not the list of issues.)

	Noel

---

From: [email-masked] (Noel Chiappa)
Date: Tue, 17 Feb 2009 20:49:45 -0500 (EST)

> From: "Lawrence Rosen" <[email-masked]>

    > This is an effective working model. I'm sure it would have to be
    > revised to fit IETF's more democratic operations.

That's not the only change it would need:

  W3C will not approve a Recommendation if it is aware that Essential Claims
  exist which are not available on Royalty-Free terms.

That contradicts an IETF policy position which I would suggest is unlikely to
change (not that I personally have a strong preference for one alternative or
the other, mind).

	Noel