Subject: IESG Considering a Revision to NOTE WELL

From: IETF Chair <[email-masked]>
Date: Tue, 6 Nov 2012 10:00:56 -0500

The IESG is considering a revision to the NOTE WELL text.  Please review and comment.

Russ

=== Proposed Revised NOTE WELL Text ===

Note Well

This summary is only meant to point you in the right direction, and
doesn't have all the nuances. The IETF's IPR Policy is set forth in
BCP 79; please read it carefully.

The brief summary:
  - By participating with the IETF, you agree to follow IETF processes.
  - If you are aware that a contribution of yours (something you write,
    say, or discuss in any IETF context) is covered by patents or patent
    applications, you need to disclose that fact.
  - You understand that meetings might be recorded, broadcast, and
   publicly archived.

For further information: Talk to a chair, ask an Area Director, or
review  BCP 9 (on the Internet Standards Process), BCP 25 (on the
Working Group processes), BCP 78 (on the IETF Trust), and BCP 79 (on
Intellectual Property Rights in the IETF).

---

From: Ted Hardie <[email-masked]>
Date: Tue, 6 Nov 2012 10:14:33 -0500

On Tue, Nov 6, 2012 at 10:00 AM, IETF Chair <[email-masked]> wrote
> The IESG is considering a revision to the NOTE WELL text.  Please review and comment.
This same text would read better to me if reordered:

"NOTE WELL

For further information: Talk to a chair, ask an Area Director, or
review  BCP 9 (on the Internet Standards Process), BCP 25 (on the
Working Group processes), BCP 78 (on the IETF Trust), and BCP 79 (on
Intellectual Property Rights in the IETF)."

That puts the most important information higher up the text and, to my
eyes at least,
makes it more prominent.

My two cents,

Ted Hardie

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 06 Nov 2012 15:25:35 +0000

I don't much like the change in approach. I think it will be too easy
to brush off; the current approach has enough substance that people
who brush it off put themselves in a very weak position.

The old text was written with legal advice. What does counsel say
about the new proposal?

Regards
   Brian Carpenter
   Cell phone during IETF85: +1 847 219 0880

---

From: "John Levine" <[email-masked]>
Date: 6 Nov 2012 15:25:38 -0000

Looks much better, people might even read it.

>    applications, you need to disclose that fact.

Perhaps "disclose that fact promptly."

Pete's been reminding us that postponing IPR disclosures until last
call or IESG review is not good.

R's,
John

---

From: "Eggert, Lars" <[email-masked]>
Date: Tue, 6 Nov 2012 15:32:49 +0000

> Perhaps "disclose that fact promptly."

+1

Since not everyone is aware of what's going on in the IRTF: we recently made a minor modification to our IPR statement to that effect. See https://www.irtf.org/ipr

One possibility would be that the IESG adopt what we did for the IRTF also for the IRTF...

Lars

---

From: "Fred Baker (fred)" <[email-masked]>
Date: Tue, 6 Nov 2012 15:34:20 +0000

This note is rather lighter in weight and tone than its predecessor, and seems like a good direction.

One suggestion: it would be good for the reference to BCP 79 be accompanied, at least in the web page in question, with a link to the BCP (http://www.ietf.org/rfc/rfc3979.txt). I could imagine someone unfamiliar with the IETF thinking that this was a reference to the Book of Common Prayer or some such thing.

There is a point of disagreement between IRTF and IETF IPR Policy, or at least there appeared to be yesterday in ICCRG. http://tools.ietf.org/html/rfc3979#section-6.1.3 states that a person who knows that someone else has IPR on something is not required, but is encouraged, to make it known. The "note well" used in ICCRG yesterday said that someone that knew of IPR belonging to someone else was required to disclose it. I'm not sure what should be done about that, but the difference seems unhelpful.

> Intellectual Property Rights in the IETF).

----------------------------------------------------
The ignorance of how to use new knowledge stockpiles exponentially. 
   - Marshall McLuhan

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 06 Nov 2012 15:35:20 +0000

> call or IESG review is not good.

Yes, and the above paragraph would make a very useful preamble to
the existing NOTE WELL, which doesn't make that point explicitly.

    Brian

---

From: "Eggert, Lars" <[email-masked]>
Date: Tue, 6 Nov 2012 15:38:55 +0000

Hi,

> There is a point of disagreement between IRTF and IETF IPR Policy, or at least there appeared to be yesterday in ICCRG. http://tools.ietf.org/html/rfc3979#section-6.1.3 states that a person who kno…

the IRTF statement is at https://www.irtf.org/ipr. For the case you mention, it says:

"Finally, the IRTF requests that you file an IPR disclosure with the IETF if you recognize IPR owned by others in any IRTF contribution."

"Requests" does not mean "required."

Lars

---

From: Paul Wouters <[email-masked]>
Date: Tue, 6 Nov 2012 10:42:55 -0500 (EST)

> This note is rather lighter in weight and tone than its predecessor, and seems like a good direction.

Can you explain your reasoning why this seems like "a good direction".

For example, how would the new Note Well improve our situation in
the Versign DNSSEC case?

Link to patent: http://domainnamewire.com/2012/10/05/verisign-files-patent-application-for-way-of-transfering-hosting-on-dnssec-domains/

Comparison of Patent vs IETF work: http://ubuntuone.com/4Bz1BqOsGMkTUQgViEL0rz

Paul

---

From: "Fred Baker (fred)" <[email-masked]>
Date: Tue, 6 Nov 2012 15:54:30 +0000

> Can you explain your reasoning why this seems like "a good direction".

Not being a lawyer, I can't comment on the legal details of IPR cases. What I am looking at is the understandability of a statement. A lawyer that I was speaking with recently told me that the IETF IPR policy is ambiguous; one must file IPR statements for standards, but not for informational documents. We wound up wandering through the details of legal statements, in which I felt he was working pretty hard to make words stand on their heads.

To my small and non-legal mind, the simplest statement is the clearest, and what the average IETFer needs is clarity. The policy is, as far as I know, that if I have or personally and reasonably know that my company has IPR on a document or statement of any category, I need to say so and encourage my company to say so; if someone else does, I am encouraged to make the fact known. Making that statement in any more complex way gives the appearance of complexity of thought, and this particular lawyer was finding complexity/ambiguity where no complexity/ambiguity exists. 

KISS.

---

From: Dave Crocker <[email-masked]>
Date: Tue, 06 Nov 2012 11:25:53 -0500

> doesn't have all the nuances. The IETF's IPR Policy is set forth in

IPR -> Intellectual Property Rights

>    - By participating with the IETF, you agree to follow IETF processes.

{ BCP 79 does not describe IETF processes, so you need an additional 
citation. /d }

>      applications, you need to disclose that fact.

{ the directive here is remarkably soft.  much too soft, IMO.  a 
sentence structure that's a bit too complicated.  so...}

A contribution by you consists of anything you write, say or discuss in 
any IETF context.  If you are aware that any contribution you make is 
covered by a patent or a patent application, you are REQUIRED to 
disclose that fact IMMEDIATELY.

> Intellectual Property Rights in the IETF).

d/
-- 
  Dave Crocker
  Brandenburg InternetWorking
  bbiw.net

---

From: Ted Hardie <[email-masked]>
Date: Tue, 6 Nov 2012 12:38:53 -0500

On Tue, Nov 6, 2012 at 11:25 AM, Dave Crocker <[email-masked]> wrote:
>
>
> { the directive here is remarkably soft.  much too soft, IMO.  a sentence
> structure that's a bit too complicated.  so...}
>
> A contribution by you consists of anything you write, say or discuss in any
> IETF context.  If you are aware that any contribution you make is covered by
> a patent or a patent application, you are REQUIRED to disclose that fact
> IMMEDIATELY.
>

I note that this is not the same language as is in BCP 79, which says:
" as  soon as reasonably possible " instead of IMMEDIATELY.  I don't
believe the NOTE WELL should disagree with the BCP on that point.  If
this changes, it should change in the BCP first/simultaneously.

regards,

Ted Hardie

---

From: Russ Housley <[email-masked]>
Date: Tue, 6 Nov 2012 12:43:37 -0500

Brian:

Jorge has reviewed this text.  He says that the current text and this proposed text are both summaries.  Both say that it is important to read the BCP to get all of the details.

Russ

---

From: Stephan Wenger <[email-masked]>
Date: Tue, 6 Nov 2012 18:27:54 +0000

Hi,
Russ, can you explain why the IESG considers it necessary to tinker with
the Note Well?
As for the substance, I don't like the text for two reasons that can be
found inline.
Stephan

>    applications, you need to disclose that fact.

1) I'm not in favor of this formulation because it can be read to impose a
stronger disclosure obligation on a participant than BCP 79.
Specifically, as Lars has already pointed out and according to BCP 79, I'm
not "needed" to disclose a patent I'm reasonably and personally aware of
that reads on a document of mine, if that patent is assigned to someone
else but myself and my sponsor/employer, ... For good reasons, BCP 79 does
not require third party disclosures.  I hope that the (few) added words
can be accommodated.
2) On the other hand, the issue of timeliness is not covered at all (as
others have already pointed out.)

I'm especially worried of point 1, which can be seen as a policy change
through the back door.  If, based on this hypothetical Note Well, we would
end up with an IETF disclosure culture in which third party disclosures
would become the norm rather than an exception, we could well end up with
a brain drain especially from folks not quite as senior in their
respective company hierarchy to have the leeway to ignore company guidance
about patents.

---

From: Dave Crocker <[email-masked]>
Date: Tue, 06 Nov 2012 13:44:18 -0500

On 11/6/2012 10:14 AM, Ted Hardie wrote:
> That puts the most important information higher up the text and, to
> my eyes at least, makes it more prominent.

+1

On 11/6/2012 12:38 PM, Ted Hardie wrote:> On Tue, Nov 6, 2012 at 11:25
AM, Dave Crocker <[email-masked]> wrote:
>> A contribution by you consists of anything you write, say or
>> discuss in any IETF context.  If you are aware that any
>> contribution you make is  covered by
>> a patent or a patent application, you are REQUIRED to disclose
>> that fact IMMEDIATELY.
>>
>
> I note that this is not the same language as is in BCP 79, which
> says: " as  soon as reasonably possible " instead of IMMEDIATELY.  I
> don't believe the NOTE WELL should disagree with the BCP on that
> point.

Thanks for checking the BCP language.  Hadn't occurred to me that it had 
anything close to an 'urgency' tone.  Yes, we should use exactly the 
same text here, IMO.

My main concern is that the summary communicate both an imperative to 
report and a directive that it be done real soon.

d/

d/

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 06 Nov 2012 19:01:21 +0000

> Jorge has reviewed this text.  He says that the current text and this proposed text are both summaries.  Both say that it is important to read the BCP to get all of the details.

OK, good. On reflection my feeling is that we definitely need the introductory
paragraph stressing the disclosure requirement, but I remain bothered by taking
out all the details. I understand there is a problem of attention span,
but there are not really all that many words in the current version.

   Brian

---

From: Russ Housley <[email-masked]>
Date: Tue, 6 Nov 2012 14:01:22 -0500

Stephan:

Based on the number of late disclosures that are occurring, it is clear to us that we need to use very plain language to explain the responsibilities to participants.

Russ

---

From: Dave Crocker <[email-masked]>
Date: Tue, 06 Nov 2012 14:30:57 -0500

On 11/6/2012 2:01 PM, Brian E Carpenter wrote:
>  but I remain bothered by taking

Simple human factors:

    You cannot expect anyone to process a mass of text from a slide and 
develop useful understanding, nevermind take required action.

Making a useful slide requires synthesizing it to show only the 
essential information.  That's what I understand the current excise to 
be and it is exactly the right thing to do.

The slide we show should have a very terse statement of the topic, the 
reader's obligations and where to go to find out more.

d/

---

From: David Morris <[email-masked]>
Date: Tue, 6 Nov 2012 11:42:27 -0800 (PST)

On Tue, 6 Nov 2012, Dave Crocker wrote:

> anything close to an 'urgency' tone.  Yes, we should use exactly the same text
> here, IMO.
> 
> My main concern is that the summary communicate both an imperative to report
> and a directive that it be done real soon.

I agree with real soon, but I think there may be times when the disclosure
needs to be approved by coporate legal folks, so I think something like:

   as soon as legally permitted

implies immediacy but ackowledges real world constraints.

---

From: Brian E Carpenter <[email-masked]>
Date: Tue, 06 Nov 2012 19:43:42 +0000

> reader's obligations and where to go to find out more.

The slide, yes. But there is the version you see on line, where I think
the details are appropriate.

    Brian

---

From: "George, Wes" <[email-masked]>
Date: Tue, 6 Nov 2012 14:49:14 -0500

> -----Original Message-----
> From: [email-masked] [mailto:[email-masked]] On Behalf Of
> IETF Chair
>
[WEG] I might suggest a small tweak (in brackets below) to this part of the text given some of the previous discussions around blue sheets/privacy and documenting people's participation in IETF potentially against their will:

- You understand that meetings [and therefore your participation in them] might be recorded, broadcast, and publicly archived.
I think this makes things a little more explicit in a way that may be helpful to those who are less familiar with IETF meetings.

Otherwise, consider this a +1 to comments supporting simplification of the Note Well text to make it a more effective summary.

Wes George

This E-mail and any of its attachments may contain Time Warner Cable proprietary information, which is privileged, confidential, or subject to copyright belonging to Time Warner Cable. This E-mail is intended solely for the use of the individual or entity to which it is addressed. If you are not the intended recipient of this E-mail, you are hereby notified that any dissemination, distribution, copying, or action taken in relation to the contents of and attachments to this E-mail is strictly prohibited and may be unlawful. If you have received this E-mail in error, please notify the sender immediately and permanently delete the original and any copy of this E-mail and any printout.

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From: "Eric Burger"<[email-masked]>
Date: Tue, 6 Nov 2012 15:46:33 -0500

Way too simple, straightforward, and easy to understand. Can't we play  
lawyer-on-the-list and make it a full page again?

--
Sent from my mobile device. Thanks be to lemonade!  
http://www.standardstrack.com/ietf/lemonade/

-----Original message-----
From: IETF Chair <[email-masked]>
To: IETF Announce <[email-masked]>
Cc: IETF <[email-masked]>
Sent: Tue, Nov 6, 2012 15:01:59 GMT+00:00
Subject: IESG Considering a Revision to NOTE WELL

The IESG is considering a revision to the NOTE WELL text.  Please review and  
comment.

Russ

Note Well

The brief summary:

---

From: tglassey <[email-masked]>
Date: Tue, 06 Nov 2012 12:51:14 -0800

On 11/6/2012 12:46 PM, Eric Burger wrote:
>     *From: *IETF Chair <[email-masked]>*
>     To: *IETF Announce <[email-masked]>*
>     Cc: *IETF <[email-masked]>*
>     Sent: *Tue, Nov 6, 2012 15:01:59 GMT+00:00*
>     Subject: *IESG Considering a Revision to NOTE WELL
>
There is no penalty for NOT DISCLOSING and that is the issue.
>     - You understand that meetings might be recorded, broadcast, and
So this is the Privacy Waiver Statement.

-- 
Regards TSG
"Ex-Cruce-Leo"

//Confidential Mailing - Please destroy this if you are not the intended recipient.

---

From: Scott O Bradner <[email-masked]>
Date: Tue, 6 Nov 2012 16:17:48 -0500

> Not being a lawyer, I can't comment on the legal details of IPR cases. What I am looking at is the understandability of a statement. A lawyer that I was speaking with recently told me that the IETF…

in case anyone wonders

one might have been able to read that into RFC 2026 but that was very carefully fixed
in the current documents - disclosures are required for ALL contributions

Scott

---

From: Stephan Wenger <[email-masked]>
Date: Tue, 6 Nov 2012 21:47:17 +0000

Hi Russ,

On 11.6.2012 14:01 , "Russ Housley" <[email-masked]> wrote:

>Stephan:
>
>Based on the number of late disclosures that are occurring, it is clear
>to us that we need to use very plain language to explain the
>responsibilities to participants.

That's an interesting statement.  To summarize the (long) message below, I
don't think that empirical data supports that there are any significant
numbers of disclosures of which it is likely that they are "late".

I went through the recent IPR disclosures (July 2012 until present) to
check against what documents they have been made.  In tabular form:
Draft-00: 13
Draft-01:  8
Draft-02:  7
Draft-03:  9
Draft-04 and later drafts: 14
Issued RFCs: 4
3rd party disclosures: 15

The 3rd party disclosures obviously are irrelevant here, as there is no
disclosure obligation for third party patent rights per BCP 79, and where
there is no obligation to disclose there cannot be a late disclosure.

Of the four disclosures made against issued RFCs, only one had a match
between an inventor's name and the RFC's author list.  That one is pledged
as RAND-Z.  It's undoubtedly late, but I guess that the rightholder
attempted to cure that lateness by offering advantageous licensing terms.
The other disclosures are RAND, but there is no indication that the
companies making the disclosure were contributing, at least not based on
matching inventor/author names (or my vague recollection of who said what
in meeting rooms at the time).   It can well be that the disclosures are
completely voluntarily, or that the disclosure requirement was triggered
just recently.  There are many examples on why this may have happened: one
of the authors joint the company in question just recently (which is the
case for one of the disclosures), or that the patent changed hands just
recently (which was the case in one of the Opus-related declarations that
looked, at the first glance, late, but clearly wasn't.)  I will also note
that one company that made a disclosure is not an IETF regular, and the
other has a comparatively small delegation for its size.  In conclusion, I
don't believe that any of the four cases have been shown to be late
disclosures, and my personal feeling is that it is highly likely that none
of them is.

As for the disclosures against older drafts (04+), they may or may not be
late.  A disclosure could be made against subject matter that has just
recently been included into a draft that already has some history.  A
disclosure obligation may have been triggered because a participant from a
given company, for the first time, decided to comment on the draft.  And
so on.  Based on the information I have, I could not conclude that there
is a single late disclosure, although I would consider it likely that
there are a few.  

As for disclosures against drafts 00 through 03, I would argue that most,
if not all, of these disclosures are probably timely.  A year or so is not
an unreasonable time frame for a company to make a disclosure, considering
the amount of paperwork and coordination required to do so.  It's not only
that a company needs to determine, for itself, whether a disclosure is
required (draw up a claim chart, have it checked by legal, understand the
role of the participant, understand the--rather exotic--IETF patent policy
among the other dozens of policies of bodies the company may be involved
in), but the company has also to settle on the licensing terms they wish
to offer (which can involve standards people, legal, and business folks,
and in many cases requires multi-level approval).  I have run that process
for one of the larger IETF participating companies in the past, and
believe me, a year is not unrealistic, even after the
policy-understanding-and-advocating phase is behind that company.  As our
policy does NOT specify another timeframe, I don't think that an argument
to the contrary is bearing as much weight as the procedural argument made
here. 

(Yes, when analyzing the drafts I have been sloppy in not distinguishing
between WG and individual drafts.  I don't think that would change the
picture significantly.)

So, to summarize, out of the 60 or so non-third-party disclosures that
have been made over the last 4+ months, only "a few" may or may not be
late; the rest almost certainly is not.

Also, I have not seen a trend going towards late disclosures.  Quite
contrary, I have seen a trend towards early disclosures.

I do not believe that, based on this data, there is a need to change the
Note Well.  If you folks still think a change is needed, then at least do
not make a change in such a way that the new Note Well does not correctly
interpret the policy we have.

The way to fix the "timeliness" of disclosures is to change BCP 79, by
adding a definition of timeliness, preferably a hard one (six months or
something like this).

Stephan

>>> The IESG is considering a revision to the NOTE WELL text.  Please
>>>review
>>> and comment.
>>> 
>>> Russ
>>> 
>>> 
>>>

---

From: Stephan Wenger <[email-masked]>
Date: Tue, 6 Nov 2012 21:56:31 +0000

On 11.6.2012 16:17 , "Scott O Bradner" <[email-masked]> wrote:

>> Not being a lawyer, I can't comment on the legal details of IPR cases.
>>What I am looking at is the understandability of a statement. A lawyer
>>that I was speaking with recently told me that the IETF IPR policy is
>>ambiguous; one must file IPR statements for standards, but not for
>>informational documents. We wound up wandering through the details of
>>legal statements, in which I felt he was working pretty hard to make
>>words stand on their heads.
>
>in case anyone wonders
>

ALL IETF contributions.  NOT all contributions to the RFC editor, and not
all RFCs.  (Which is of a certain relevance given, for example, the VP8
codec definition RFC)

And, only if the IPR in question is yours or your employer's.

Stephan

---

From: Paul Wouters <[email-masked]>
Date: Tue, 6 Nov 2012 17:17:33 -0500 (EST)

> late; the rest almost certainly is not.

Do we have a list of known IPR for which no disclosure was filed
whatsoever (a.k.a. very very very late or possible never filing on
purpose) ? Without that information, I don't think we can judge how
well the Note Well is working currently.

Paul

---

From: Stephan Wenger <[email-masked]>
Date: Tue, 6 Nov 2012 22:22:49 +0000

>well the Note Well is working currently.

Obviously, I do not have such information.  Let me return the favor: do
you know how much better a shorter, albeit badly aligned with policy, Note
Well would work?

Stephan

---

From: Scott O Bradner <[email-masked]>
Date: Tue, 6 Nov 2012 17:27:43 -0500

correct - except that the IRTF has adopted the same disclosure requirements

Scott

---

From: tglassey <[email-masked]>
Date: Tue, 06 Nov 2012 15:27:03 -0800

> On 11.6.2012 14:01 , "Russ Housley" <[email-masked]> wrote:

This isnt complex - if there is a fraud here lets let the FTC deal with 
it.   That is how to keep our hands clean.

So will the Chair ask the IETF Counsel to formally contact the FTC to 
ask them to review this matter.  Then its in the FTC's lap and there is 
no issue for us to worry about.

Todd

-- 
Regards TSG
"Ex-Cruce-Leo"

---

From: Russ Housley <[email-masked]>
Date: Tue, 6 Nov 2012 18:30:21 -0500

> numbers of disclosures of which it is likely that they are "late".

If the disclosure is made after the document completes WG Last Call, then it is late in the IETF standards process.  When the disclosure comes after this point in the process, then we need to loop back and redo some steps.

Russ

---

From: "George Willingmyre" <[email-masked]>
Date: Tue, 6 Nov 2012 18:57:44 -0500

I  do not argue that sooner is not better w/r to IP disclosures, however see practical data  at ETSI  described at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1912198  Assessing IPR Disclosure Within Standard Setting: An ICT Case Study  November 2011  Anne Layne-Farrar 

Russ, w/r to timing of disclosures is a "late" disclosure defined anywhere  in procedures as stated: "If the disclosure is made after the document completes WG Last Call, then it is late in the IETF standards process"

 clip from study 

Specifically, I take an empirical look at the timing of patent disclosures within the European Telecommunications Standards Institute, the body responsible for some of the world's most prevalent mobile telephony standards. I find that most members officially disclose their potentially relevant patents after the standard was published, and sometimes considerably so. On the other hand, I also find that the delay in declaring patents to ETSI standards has been shrinking over time, with disclosures occurring closer to (although for the most part still after) the standard publication date for more recent standard generations as compared to earlier ones.

George T. Willingmyre, P.E.
President, GTW Associates
Spencerville, MD USA 20868
301.421.4138
www.gtwassociates.com

----- Original Message ----- 
From: "Russ Housley" <[email-masked]>
To: "Stephan Wenger" <[email-masked]>
Cc: "IETF" <[email-masked]>
Sent: Tuesday, November 06, 2012 6:30 PM
Subject: Re: IESG Considering a Revision to NOTE WELL

Russ

---

From: tglassey <[email-masked]>
Date: Tue, 06 Nov 2012 15:57:52 -0800

> On 11.6.2012 14:01 , "Russ Housley" <[email-masked]> wrote:

*'Sunlight Is the Best Disinfectant'*

Sunlight is the best disinfectant," a well-known quote from U.S. Supreme 
Court Justice Louis Brandeis, refers to the benefits of openness and 
transparency. I invoke this quote often as executive director of the 
NYSSCPA, to illustrate that _*the most credible and respected 
organizations operate in an atmosphere of avowed openness*_. We should 
not only accept criticism and suggestions, we should embrace them. If 
questions from constituents, the public, or the media make leaders or 
other responsible parties obfuscate, the questions are usually valid and 
the answers are not. _/*People who feel uncomfortable under the bright 
light of scrutiny and criticism often have something to hide.
*/_

http://www.nysscpa.org/cpajournal/2003/1203/nv/nv2.htm

Todd

>> Stephan:e

-- 
Regards TSG
"Ex-Cruce-Leo"

---

From: Randy Bush <[email-masked]>
Date: Wed, 07 Nov 2012 09:30:39 +0900

let's be simple here.  'late' would seem to be any time after there was
a reasonable expectation that you knew there was a document on which
there was ipr.

randy

---

From: "George Willingmyre" <[email-masked]>
Date: Tue, 6 Nov 2012 20:15:58 -0500

It is not so simple.   BTW, this is not legal opinion,  rather experience

The phrase  "reasonable expectation" is fraught with difficulty both about 
whether a contribute knew about IP or did not know or should reasonably have 
known and  whether he/she believed any such IP would be  "reasonably 
expected"  to be essential

But my objective in the question  what might be "late" was whether IETF may 
have defined "late" somewhere and the rationale for a new "note well" 
statement that it was because of  recent "late disclosures"

I caution against discouraging disclosures even it they are  "late"

---

From: Randy Bush <[email-masked]>
Date: Wed, 07 Nov 2012 10:23:36 +0900

[ my last post on this ]

> But my objective in the question what might be "late" was whether IETF
> may have defined "late" somewhere

we are [supposed to be] professionals of *integrity*.  discussion of how
far the submarine should be allowed to run before it surfaces are the
primrose path.  as professionals of integrity, we should not participate
in submarine exercises.

randy

---

From: Brian E Carpenter <[email-masked]>
Date: Wed, 07 Nov 2012 12:10:00 +0000

+1

My experience is that, when the disclosure is made by a corporate IPR
department on behalf of the actual contributor, there can be at least
a couple of months delay. If a draft is at an early stage in the IETF
process, that isn't usually catastrophic, but it is a bit uncomfortable.

I wonder whether we should encourage an informal warning that an
IPR disclosure is in the pipeline, when such a corporate delay is likely.

On the other hand, there is sometimes the happy outcome that the
corporate IPR people decide that the contribution does not infringe
the essential claims, so no disclosure is needed.

    Brian

---

From: John C Klensin <[email-masked]>
Date: Wed, 07 Nov 2012 07:30:05 -0500

--On Wednesday, 07 November, 2012 10:23 +0900 Randy Bush
<[email-masked]> wrote:

> [ my last post on this ]
> 
>> But my objective in the question what might be "late" was
>> whether IETF may have defined "late" somewhere
> 
> we are [supposed to be] professionals of *integrity*.
> discussion of how far the submarine should be allowed to run
> before it surfaces are the primrose path.  as professionals of
> integrity, we should not participate in submarine exercises.

FWIW, I completely agree with this, while noting three things:

(1) If someone decides to try to evade the rules rather than
behaving professionally and with integrity, no amount of
hair-splitting on our part about how the rules are written will
help much.  Probably we would just create more loopholes.  There
are days that it is too bad we can't recall participants for
non-professional behavior, but that would almost certainly cause
more problems than it would be worth (or would never be used,
convincing those who are inclined to misbehave that the
misbehavior is ok as long as no one moves to kick them out).

(2) The NOTE WELL isn't about the rules -- if someone doesn't
like the rules, they need to convince the IESG to reopen the IPR
WG.  It seems to me that George's question is about the rules,
not the NOTE WELL (as are several other comments in the thread).

(3) We know how to fix these problems.  It involves abandoning
the IETF's entire "individual participants" model and replacing
it with an organizational model, including explicit, signed,
agreements when an organization wants to participate and
probably a patent policy that requires specific categories of
terms, not just disclosure.   I hope we don't go there.

Observation on the text: I think that a change to something that
reinforces the view that the NOTE WELL is a strong suggestion
that there are rules, that they impose requirements, and that
people pay attention to them is a move in the right direction.
The text we've used for the last few years has contained enough
details to leave many people with the impression that it is the
rule set and that actually understanding the BCPs is unnecessary
except as an added reference/clarification.   The final
paragraph should, IMO, probably include some variation of the
stock "consult your own legal counsel" statement as well as
advice to talk with various IETF people.

    best,
     john

---

From: Dave Crocker <[email-masked]>
Date: Wed, 07 Nov 2012 07:46:26 -0500

>> primrose path.  as professionals of integrity, we should not participate
...
> IPR disclosure is in the pipeline, when such a corporate delay is likely.

With my non-attorney's understanding of IPR protection, an 'informal' 
disclosure to an outside party is still a disclosure.  For the scenario 
being discussed, the delay is specifically to get authorization for 
/any/ disclosure, with the presumption that none is permitted absent 
that authorization.

As for an assumption of integrity, the motivation for the current effort 
is caused by a lack of IPR holders' being forthcoming.

It doesn't matter whether the problem has been due to lack of 
understanding, lack of integrity, or something else:  the reasonable 
goal here is to make sure that this fundamental IETF requirement is more 
clear to more people, sooner.

d/

---

From: John C Klensin <[email-masked]>
Date: Wed, 07 Nov 2012 08:09:10 -0500

--On Wednesday, 07 November, 2012 12:10 +0000 Brian E Carpenter
<[email-masked]> wrote:

>...
> My experience is that, when the disclosure is made by a
> corporate IPR department on behalf of the actual contributor,
> there can be at least a couple of months delay. If a draft is
> at an early stage in the IETF process, that isn't usually
> catastrophic, but it is a bit uncomfortable.
> 
> I wonder whether we should encourage an informal warning that
> an IPR disclosure is in the pipeline, when such a corporate
> delay is likely.
> 
> On the other hand, there is sometimes the happy outcome that
> the corporate IPR people decide that the contribution does not
> infringe the essential claims, so no disclosure is needed.

I think it would be hard to write rules here for reasons that
include the contrast above (and again note this is about the
rules, not about the NOTE WELL text).   But it would be
perfectly consistent with today's rules for a participant to
post a disclosure that says "I think there may be an issue here,
clarifying corporate statement will follow".  That wouldn't stop
the "timely" clock because it doesn't contain any substantive
information that could be evaluated.  I guess that, if I were
personally responsible for being sure that a timely disclosure
occurred and expected some months of delay, I'd consider such a
note to be a professional thing to do, especially since the BCPs
are (deliberately) vague and open-ended about exactly what a
disclosure has to contain.  

A WG seeing such a placeholder notice would presumably do
absolutely nothing other than remembering to ping the individual
and company if things got close to a critical decisions point
without any real information being available.

I can agree with "encourage", but I don't think any of this
requires extra text or rules.

best,
   john

---

From: Stephan Wenger <[email-masked]>
Date: Wed, 7 Nov 2012 13:33:35 +0000

On 11.7.2012 07:10 , "Brian E Carpenter" <[email-masked]>
wrote:

>[...]

In my experience, it happens very often that a corporate IPR department
finds that a disclosure is not needed.  It is, in most cases, not to the
advantage of a rightholder to disclose a patent unless he is undeniably
obligated to do so, with the result that IPR departments typically do
their homework, claim charts and whatnot.  (That also takes time.)  OTOH,
it is, in many cases, to the advantage of a participant to request a
patent to be disclosed, be it because of IETF-integrity, essential patent
bonuses, or other motivations.

Stephan

---

From: John Leslie <[email-masked]>
Date: Wed, 7 Nov 2012 09:57:40 -0500

Stephan Wenger <[email-masked]> wrote:
>... 
> It is, in most cases, not to the advantage of a rightholder to disclose
> a patent unless he is undeniably obligated to do so...

   This is a really strange statement, at first blush.

   So I ask Stephan to clarify what he meant to say (before I react to it).

--
John Leslie <[email-masked]>

---

From: Stephan Wenger <[email-masked]>
Date: Wed, 7 Nov 2012 15:59:46 +0000

>   So I ask Stephan to clarify what he meant to say (before I react to

The vast majority of non-third-party patent disclosures are made by the
rightholder's legal, and not only discloses the patent, but also promises
certain licensing terms (most often RAND, RF, or a non-assert promises
that has many similarities with an RF license).  (This is a shortcut of
the official procedure which would require the IETF brass to ask for
licensing terms after an disclosure without terms has been made.)  Having
made such a statement restricts the freedom of business of the rightholder
with respect to these patents.  Restricting the freedom of business is
usually not a useful thing for a business.

Further, the mere knowledge of the existence of a patent claim against a
specification can derail the inclusion of that technique from the draft.
Assuming the technique was proposed not only for the benefit of getting a
patent in, but for other motives (which, I hope, is still the case of the
vast majority of contributions made to the IETF--I'm not so sure in some
other standards bodies :-), having a patent disclosure against it is not
to the advantage of the proponent.

Of course, the legal folks also have to keep in mind that not disclosing a
patent also can have negative consequences if that patent were asserted
against the standard later.   So they check very carefully whether they
are "undeniably required to" make a disclosure, but if they think they
are, they also make such a disclosure.

Gaming the system by over-declaring (to kill a technology through FUD) or
especially under-declaring (in the hopes to get a patented technology in
the standard without agreeing to encumbrances) is known to have happened,
but it's IMO really not that big an issue any more--mostly, because courts
have brought the hammer down on rightholders who tried.

Clearer?

Stephan

---

From: "Lawrence Rosen" <[email-masked]>
Date: Wed, 7 Nov 2012 09:35:27 -0800

On 11/6 the IETF Chair proposed the following wording: 
 - If you are aware that a contribution of yours (something you write,
    say, or discuss in any IETF context) is covered by patents or patent
    applications, you need to disclose that fact.

I'm surprised that a standards organization would use the phrase "need to"
instead of one of the REQUIRED words typically used in standards. (See
http://tools.ietf.org/html/bcp14)

So how about:
- If you are aware that a contribution of yours (something you write,
    say, or discuss in any IETF context) is covered by patents or patent
    applications, you MUST disclose that fact.

Meanwhile, I am enjoying the discussion about the expected timeliness of
such REQUIRED disclosures. This is indeed a difficult issue with tradeoffs
for IP owners and those who implement IETF standards. In particular, I want
to see how IETF balances Stephan Wenger's accurate statement that
"[r]estricting the freedom of business [by requiring early disclosures] is
usually not a useful thing for a business [that owns IP]" with the corollary
that "late disclosures may restrict the freedom of business of every other
business." But perhaps, as Stephen also suggests, that hasn't proven to be a
real, measurable problem (yet) at IETF?

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Rd., Ukiah, CA 95482
Office: 707-485-1242

-----Original Message-----
From: IETF Chair [mailto:[email-masked]] 
Sent: Tuesday, November 06, 2012 7:01 AM
To: IETF Announce
Cc: IETF
Subject: IESG Considering a Revision to NOTE WELL

Russ

Note Well

This summary is only meant to point you in the right direction, and doesn't
have all the nuances. The IETF's IPR Policy is set forth in BCP 79; please
read it carefully.

The brief summary:

For further information: Talk to a chair, ask an Area Director, or review
BCP 9 (on the Internet Standards Process), BCP 25 (on the Working Group
processes), BCP 78 (on the IETF Trust), and BCP 79 (on Intellectual Property
Rights in the IETF).

---

From: tglassey <[email-masked]>
Date: Wed, 07 Nov 2012 11:23:41 -0800

On 11/7/2012 5:33 AM, Stephan Wenger wrote:
> finds that a disclosure is not needed.
Agreed - but most of them are predatory and not interested in 
transparency, something that a GSO must have.
>   It is, in most cases, not to the
> their homework, claim charts and whatnot.
Unfortunately in an open and transparent forum which has multiple legal 
parties collaborating on jointly owned and licensed IP this is an issue.
> (That also takes time.)  OTOH,
Stephan the hiding of IP protections from the community may in fact be a 
criminal act. It clearly constitutes an intentional fraud if the party 
who has knowledge of the IP is also withholding it because its to their 
financial benefit.

This is what needs to be addressed by a revision to 78/79

-- 
Regards TSG
"Ex-Cruce-Leo"

---

From: t.p. <[email-masked]>
Date: Wed, 7 Nov 2012 21:11:09 +0000

----- Original Message -----
From: "Russ Housley" <[email-masked]>
To: "Brian E Carpenter" <[email-masked]>
Cc: "IETF" <[email-masked]>
Sent: Tuesday, November 06, 2012 5:43 PM

Brian:

Jorge has reviewed this text.  He says that the current text and this
proposed text are both summaries.  Both say that it is important to read
the BCP to get all of the details.

<tp>
Even so, I am surprised that Jorge is ok with this.  The new text talks
of something which
"is covered by patents or patent applications"
whereas the RFC talks of
'IPR" or "Intellectual Property Rights": means patent, copyright,
      utility model, invention registration, database and data rights
      that may Cover an Implementing Technology, whether such rights
      arise from a registration or renewal thereof, or an application
      therefore, in each case anywhere in the world'
and the two are different.

Quite often now I see a chair calling explicitly for IPR disclosures and
getting a response that the authors know of no patent application, and
while I have no reason to suspect that anyone is trying to game the
system, it can only be a matter of time before someone spots this
loophole and does.  There have been a number of strangely late
declarations of IPR in the past few years, which have attracted comment,
but most of which have never seem to be satisfactorily explained which
makes me think we need to be more rigorous, more formal, more
challenging, in this matter, not watering down our words.

Tom Petch

Russ

>> The IESG is considering a revision to the NOTE WELL text.  Please
review and comment.

---

From: tglassey <[email-masked]>
Date: Wed, 07 Nov 2012 13:49:01 -0800

> challenging, in this matter, not watering down our words.
Tom question for you -  apparently the patent affecting the newly 
proposed NEA standard was filed according to Mssr. Farrel in 2004 - so 
what then is reasonable about the disclosure period?

The issue is simple - the process currently has so much wiggle room in 
it that these types of things happen - so lets eliminate the wiggle room 
completely. This would take new get-tough language on patent disclosure 
and the like as to what happens to an IETF effort when a submarine IP 
event occurs as well.

Todd

-- 
Regards TSG
"Ex-Cruce-Leo"

---

From: John Leslie <[email-masked]>
Date: Wed, 7 Nov 2012 18:19:02 -0500

> Clearer?

   Much clearer. Thank you!

> that has many similarities with an RF license).

   Indeed, they mostly do include something about licensing terms --
without these, it would be very difficult to evaluate the impact of
the IPR on deployment. We are always glad to see these.

> (This is a shortcut of the official procedure which would require the
> IETF brass to ask for licensing terms after an disclosure without
> terms has been made.)

   Actually no. There is no "IETF brass" and there is no requirement to
have licensing terms: they merely make things easier (and I do know of
cases where a WGC "suggested" amending an IPR disclosure to include
these).

> Having made such a statement restricts the freedom of business of the
> rightholder with respect to these patents.

   Technically true, certainly...

> Restricting the freedom of business is usually not a useful thing for
> a business.

   Not true. Businesses enter _many_ contracts which restrict their
"freedom" but increase their profitability.

> specification can derail the inclusion of that technique from the draft.

   Good point! In too many cases, the patent system is "damage" that we
feel a need to "route around". :^(

> to the advantage of the proponent.

   That rather depends upon the _content_ of the disclosure. A disclosure
without even a hint of licensing terms definitely hurts the chances of a
particular technology. But I have seen disclosures which _help_ the chances
of the technology.

> against the standard later.

   Yes! Fortunately, courts recognize certain patents as "damage" and
help us route around them. ;^)

> So they check very carefully whether they are "undeniably required to"
> make a disclosure, but if they think they are, they also make such a
> disclosure.

   "undeniably required to" is very unfortunate wording. There is no such
thing as a requirement you can't find _some_ lawyer to argue against, for
a price...

   Legal departments _do_ try to balance the risks of losing rights due
to a failure-to-disclose against the risk of losing licensing revenue.
This is _not_ helpful to our process!!!

> have brought the hammer down on rightholders who tried.

   There are many more cases (of both) where courts have not yet "punished"
the over-declaring/under-declaring. :^(

   The "late-declaration" problem, as viewed by the IESG, stems from
declarations received _after_ an IETF-wide LastCall has been issued.
IMHO the individual members are bothered by delays shorter than that,
but don't consider those to be issues for the IESG.

   There (alas!) are cases where the IETF participant doesn't realize
the IPR issue exists until IETF LastCall is issued. But the perceived
"normal" case is one where the IETF participant knows of the IPR before
an I-D is even accepted as a WG draft -- but rather than disclosing
him/herself, asks the legal department of his/her employer to make the
disclosure, and considers that to fully satisfy the obligation.

   IMHO, the IPR-process discussions this week are mainly an attempt
to get across to folks that passing the buck does _not_ satisfy your
obligation: the obligation attaches to the IETF participant, not the
employer; and failure to keep prodding the legal department fails the
"as soon as reasonably possible" test.

---

From: bill manning <[email-masked]>
Date: Sat, 10 Nov 2012 04:18:50 -0800

is "...an IETF context..."  well defined?

/bill

---

From: Dave Crocker <[email-masked]>
Date: Mon, 12 Nov 2012 08:12:47 -0800

> is "...an IETF context..."  well defined?

For example, is a Bar BOF an IETF context?

What about a dinner among some attendees, on their own, during IETF week?

What about outside of IETF week?

What about a private email exchange by a couple of attendees, about an 
IETF topic?  Outside of IETF week?

And these really are questions for an attorney.

Sometimes, legal language that is ambiguous is helpful.  This isn't one 
of those times, since it needs to have clarity for average participants.

d/

---

From: "Adrian Farrel" <[email-masked]>
Date: Mon, 12 Nov 2012 17:52:10 -0000

I think you miss the point of "This summary is only meant to point you in the
right direction, and doesn't have all the nuances. The IETF's IPR Policy is set
forth in BCP 79; please read it carefully."

That point is: this Note Well is not intended to reproduce the entirety of
BCP79.

Adrian

> From: [email-masked] [mailto:[email-masked]] On Behalf Of Dave
> Crocker
> Sent: 12 November 2012 16:13
> To: bill manning
> Cc: Keio; IETF; IETF Announce

---

From: Dave Crocker <[email-masked]>
Date: Mon, 12 Nov 2012 15:23:01 -0800

> forth in BCP 79; please read it carefully."

as in 1.c of the doc, I believe.

d/